Standard Service Terms and Conditions for RealTime Pro

These Standard Service Terms and Conditions (“Terms” or the “Agreement”) govern the purchase of access to Sermo’s RealTime Pro market research platform (“RTP”) between Sermo Inc., and its affiliates, a company incorporated under the laws of the State of Delaware with a principal place of business at 2 Crosby Street, FL 2, New York NY 10013 (“Sermo”), and the purchaser of RTP Services (“Customer”). These terms replace and supersede all other Terms and Conditions agreed upon between the Parties as to Customer’s use of and access to RTP. These terms are subject to change at Sermo’s sole discretion.

Term. This Agreement shall continue for the duration of the use of the Services (the “Term”). Customer shall be required to accept the terms of this Agreement each time it begins a new project in RTP. Subsequently signed agreements incorporating access to RTP shall be subject to the terms and conditions herein, unless such agreements explicitly provides otherwise.
Termination. Upon the end of the Term, Customer will (i) immediately discontinue all use of the Services; and (ii) promptly pay to Sermo all amounts due and payable under this Agreement.
Services. Customer shall receive access to Sermo’s market research platform, RTP, through which Customer may conduct its own market research surveys. Customer shall be responsible for determining the scope of any market research projects directly in the RTP platform.
Use of RTP Platform. During the Term, subject to these Terms, Sermo grants Customer a non-exclusive and non-transferable right to access and use Sermo’s RTP platform as a part of the Services. Such use shall be solely for Customer’s business purposes in accordance with these Terms. Customer may only provide access to RTP to its employees and contractors and solely by means of a unique password issued by Sermo to Customer. Customer is solely responsible for safeguarding the confidentiality of any password(s) and username(s) created by Customer for use of RTP, and for any use or misuse of Customer’s account resulting from any third party using a password or username created by Customer. Customer acknowledges and agrees that, as between Customer and Sermo, Customer shall be responsible for all acts and omissions of Customer’s employees and contractors, and any act or omission by a Customer employee or contractor which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
1. Customer will not use RTP in any way that was not intended in accordance with the scope of the Services, including but not limited to, by: (i) exercising a bulk data download of the entire database, engaging in personal data collection, or saving data from Customer’s database for future usage post termination of the Term, other than Customer’s deliverables; (ii) decompiling, disassembling, reverse engineering, or otherwise attempting to obtain or perceive the source code from which any software component of RTP is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (iii) creating any derivative product or database from data obtained from RTP or any deliverable, except with the prior written consent of Sermo; (iv) allowing third parties other than Customer’s employees or contractors who have the need to access the Services to gain access to RTP; or (v) assigning, sublicensing, selling, reselling, leasing, renting or otherwise transferring or conveying, or pledging as security or otherwise encumbering, Customer’s rights under this section.
2. Customer will ensure that its data collection practices, use of RTP, and any deliverables provided by the Services complies with all laws, statutes, regulations or rules applicable to Customer’s use thereof in the territories where Customer is using same, including all applicable Data Protection Laws.
Effect of Termination.
1. After the end of the Term, Customer acknowledges, represents, and warrants that the right for usage of RTP is fully revoked. Access may be reinstated upon the initiation of a new project by the Customer within RTP, subject to the Customer’s agreement to then-current Terms. However, subject to fully paid invoices by Customer, all data derived from the surveys run by the Customer through RTP during the Term shall become the sole and exclusive property of Customer.
Content Responsibilities
1. Customer Content. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all data, materials and information supplied by Customer, including information that is submitted to, on behalf, or related to, or with Customer’s authorization, on RTP (“Customer Content”). Customer understands and agrees that Sermo shall have no duty, liability or responsibility of any kind for monitoring third party content including without limitation, any Customer Content or any data provided by respondents; provided, however, Sermo may refuse, in its sole discretion, to publish any Customer Content or deliver data derived from the surveys run by the Customer through RTP, if Sermo in good faith determines that the Customer Content does not comply with Sermo’s then-current Standard Service Terms and Conditions or any portion fails to conform to the relevant specifications or could harm the reputation or goodwill of Sermo (including, without limitation, Customer Content containing obscenity or profanity, promoting the prescription or use of any medical products or devices, promoting the use of tobacco or other products which do not promote good health, recommending treatments which are inconsistent with accepted medical practice, or that is false or misleading). Customer acknowledges that nothing in this Agreement grants to Customer any right to modify or otherwise influence or control the content contained in RTP other than the Customer Content. Customer grants Sermo all necessary rights to the Customer Content to perform the Services under this Agreement. Without limiting the foregoing, Customer agrees that it is solely responsible to ensure that the Customer Content comply with all federal, state and local health regulatory laws, rules and regulations applicable to such Customer Content including, but not limited to, data protection laws, MR Industry guidelines (i.e., ESOMAR, BHBIA, EPHMRA, MRS, INSIGHTS ASSOCIATION, INTELLUS, etc.), Safety Information (i.e., Adverse Events, Product Complaints and Special Reporting Situations, collectively “SI”) management, products liability, protection of health information, , advertising and promotion requirements, and marketing and transparency disclosure requirements (collectively, “Regulatory Laws”). Customer represents and warrants that all Customer Content has been reviewed and approved internally by Customer for such use and is in compliance with all Regulatory Laws. Customer further understands and agrees that it will provide specific written direction to Sermo should any Customer Content need to be removed from RTP and/or cease to be used in connection with the Services, as determined by the Customer. Customer agrees not to upload, distribute, or otherwise transmit any Customer Content that contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment associated with the RTP platform.
Product Safety & Safety Information management.
1. No obligation. Sermo does not access or review any data or content which goes directly to Customer. As a result, Customer has sole responsibility for all SI management that may be required.
2. SI Follow-Up Services. Sermo may assist in following up with respondents as may be reasonably requested by Customer in writing, if necessary for Customer’s compliance with SI reporting obligations. However, Sermo cannot guarantee that (i) the respondent will agree to be contacted directly for additional information, (ii) will provide additional information when requested, (iii) or how long it may take such respondent to respond if they choose to do so. Customer hereby agrees that any follow-up services will be provided in accordance with Sermo’s internal policies and procedures.
3. SI Reporting Training. Sermo shall only access source data subject to the written instructions of the Customer. Therefore, Sermo shall not be required to complete SI reporting training, unless specifically requested by the Customer in writing, and only in the event SI follow-ups are necessary.
Survey Responses. All healthcare professionals’ responses provided within RTP are published by such healthcare professionals (“Users”). Therefore, Sermo has no control over such responses nor any responsibility for the accuracy or completeness thereof. Any opinions, advice, statements, services, or other information or responses expressed or made available as part of the Services are those of the respective Users. Sermo does not guarantee the accuracy, completeness, or usefulness of any content found via RTP. Under no circumstances will Sermo be liable for any loss or damage caused by Customer’s reliance on any content found on via RTP. It is Customer’s sole responsibility to evaluate the accuracy, trustworthiness, completeness and/or usefulness of any such content. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Sermo has the right to use any information or materials submitted by Users in accordance with Sermo’s then-current terms of use and privacy policy.
Non-solicitation. Customer acknowledges and agrees that the Users are a valuable asset to Sermo and are difficult to replace. Accordingly, Customer agrees that it shall not contact any User who customer engages with through its use of RTP, outside of RTP for any purposes, including but not limited to market research. Customer will establish appropriate measures to prevent the promotion or advertisement of its own market research panel or services to Users through RTP, including but not limited to preventing the inclusion of hyperlinks that could re-direct Users to external recruitment or registration websites.
Customer Responsible for All Consultants, Agents and Vendors. Customer understands and agrees that it is solely responsible for all activities undertaken by the Customer’s consultants, agents and vendors. Customer further represents and warrants that its consultants, agents and vendors are not debarred pursuant to the Federal Food, Drug and Cosmetic Act, excluded from a federal health care program, debarred from federal contracting, or convicted of or pled nolo contendere to any felony, or to any federal or state legal violation (including misdemeanors) relating to prescription drug or device products or fraud. Sermo shall have no duty, liability or responsibility of any kind to, or for, the acts or omissions of any Customer consultant, agent or vendor. Customer understands and agrees that Customer shall cause each of its consultants, agents and vendors hereunder to comply with the terms of this Agreement.
Confidential Information. “Confidential Information” means any non-public material or information relating to a party which it discloses or makes available to the other party under this Agreement that is either marked confidential or is reasonably apparent to be confidential or proprietary in nature, including, but not limited to, information relating to business strategies, financial information, business plans, and methods of operations. Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Agreement, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement, provided, however, that the receiving party may retain a copy of materials containing the Confidential Information to the extent required for legal and archival purposes. The party receiving information from the other shall be under no obligation of confidentiality if: (a) such information is generally available to the public other than as a result of a breach of this or any other agreement; (b) such information is already in the possession of the receiving party without restriction and prior to any disclosure hereunder or in connection herewith; (c) such information is or has been lawfully disclosed to the receiving party by a third party, not employed by or otherwise affiliated with the receiving party, who is lawfully entitled to disclose the same; (d) such information is or has been independently developed by the receiving party and no confidential information disclosed hereunder has been used directly or indirectly in connection therewith; (e) the disclosing party consents in writing to such distribution or disclosure; or (f) such information is required to be disclosed pursuant to law, regulation, rule, act, or order of any judicial or governmental authority or agency, or industry ethical guidelines, provided that the party required to make such disclosure has used good faith efforts to secure confidential treatment of such information.
Intellectual Property. Ownership of and all rights, title and interest in RTP and the intellectual property embedded therein, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, is and shall remain vested in Sermo. The only rights Customer acquires are the rights to access and use RTP pursuant to these terms and conditions. Customer agrees that Sermo has the right to collect and create de-identified and anonymous usage data, statistical data and meta data derived from the Services, provided that such derived data cannot be used to identify or be linked to Customer or any entity or individual or reveal any identifiable Customer Data or be used to recreate any Customer Data (“Derived Data”).
Payment Terms. Customer will pay the fees within thirty (30) days of receiving an invoice, unless Customer has a separate agreement with Sermo that provides otherwise. Customer must notify Sermo in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice.  Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.  Sermo reserves the right to charge, and Customer agrees to pay, a late charge equal to one and a half percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance. In addition to all other remedies, Sermo may suspend its performance if any payment is past due. Suspension will not relieve Customer of its obligation to pay in full. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges.  
Warranty and Warranty Disclaimer. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability, whether in the United States or elsewhere, to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. EXCEPT AS PROVIDED HEREIN, THE SERVICES, RTP, AND ALL OF THE CONTENTS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND SERMO HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS OWN USAGE OF RTP AND THE SERVICES, AND ITS USE OF ANY INFORMATION OBTAINED THROUGH SUCH USAGE. SERMO WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY USER CONTENT PROVIDED ON OR MADE AVAILABLE VIA RTP OR SERVICES.
Limitation on Liability. EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL SERMO BE LIABLE OR OBLIGATED TO CUSTOMER IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SERMO IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. EXCEPT WITH RESPECT TO EACH PARTY’S (I) CONFIDENTIALITY OBLIGATIONs; OR (II) INTENTIONAL MISCONDUCT, IN NO EVENT WILL SERMO BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT PAID BY THE CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE UPON WHICH THE CLAIM ACCRUES. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Indemnification. Customer shall defend, indemnify and hold harmless Sermo and its affiliates from and against any claims, losses, damages and costs, including reasonable legal fees and expenses, awarded by a court or agreed upon in settlement based upon a third party claim (i) related to Customer’s use of RTP and the Services, or the Customer Content; (ii) related to Customer’s violation of any applicable law, rule or regulation; (iii) any negligent or willful act, omission, or representation of Customer or its representatives; (iv) the Services infringing a valid patent, or any copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party; or (v) any violation by Customer or its representatives of any obligation or warranty contained herein.
Data Processing Addendum. To the extent that Sermo delivers Services to Customer through RTP, such services will inherently involve the processing of User’s Personal Data. Customer appoints Sermo, Inc as a Processor to process Personal Data on its behalf. This Data Processing Addendum (“Addendum”) will apply to Customer and Sermo for as long as these Standard Service Terms and Conditions apply to Customer, or for as long as Sermo processes User’s Personal Data on Customer’s behalf – whichever is longer.
1. Consents. The Customer acknowledges and agrees that it is solely responsible for obtaining all necessary consents and permissions required for the execution of the market research (MR) study by Customer. Sermo shall not be responsible for securing such consents and shall not be liable for any failure by the Customer to obtain the requisite consents. Customer shall ensure that all consents obtained are in full compliance with applicable laws, regulations, and ethical guidelines governing the MR study.
Use of Sub-Contractors. Customer may opt to engage Third-Party sub-contractors suggested by Sermo through RTP to supplement recruitment. The Customer is responsible for the selection or refusal of any Third-Party sub-contractors suggested by the Company. The Customer’s selection of such Third-Party sub-contractors shall be regarded as consent to the sub-processing of personal data by the selected Third-Party subcontractors. The current list of Third-Party sub-contractors is accessible here.
Incentives. Sermo has developed a custom-built, intelligent technology system which pinpoints exact honoraria to be paid on a respondent-by-respondent and project-by-project basis, to balance financial motivation for participation with other motivators. Honoraria stated in the proposal is the estimated value that will be paid to the respondent based on the length and complexity of a project, the respondent’s market, specialty and previous response history. This amount is our best estimate of the likely levels that will need to be offered by Sermo and any Third-Party sub-contractors in order to complete the project. To provide Customer with predictable budgets, Sermo will invoice the estimated honoraria and own the risks/benefits of any overruns/shortfalls. If Customer requires notification of final honoraria values, these can be provided by Sermo upon written request at the end of a project. The incentive handling fee covers the labour, material and third-party costs of producing/sending checks and credit cards, managing and processing payments, and answering payment queries. Should the Customer be required to follow specific fair-market value caps, these must be set-out by the Customer through RTP during project set-up.
Audit Rights. The Customer may conduct one audit per year to verify Sermo’s compliance with these Terms, provided the audit does not disrupt the Company’s operations and is conducted in accordance with Sermo’s security and confidentiality policies. Audit requests must be submitted with a thirty (30) days written notice, and the scope shall be limited to the Company’s data management and protection processes relevant to the Agreement. The Customer bears all audit costs. Any non-compliance identified will be remedied by the Company within a reasonable timeframe, not less than thirty (30) days, unless urgent action is required, in which case, the parties shall mutually agree timelines for response.

Miscellaneous.

Third Party Interactions. During the Customer’s use of RTP, Customer may enter into discussions or correspondence with other contributors or users (each a “Third Party”). Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between the Customer and the applicable Third Party. Customer acknowledges that the information provided by any Third Party during any direct communications between Customer and such Third Party (whether or not arranged, directly or indirectly, by Sermo) may be incorrect, and Customer hereby holds Sermo harmless and free of all liability as a result of any exchange or interaction with any such Third Party.
General. This Agreement will be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. Neither Customer nor Sermo will assign this Agreement without the prior written consent of the other party hereto, except to an affiliate or to a successor in connection with a change of control.
Conflict. If the parties have entered into an effective Master Services Agreement, these Terms apply to the usage of RTP.
Choice of Law & Venue. This Agreement shall be governed and construed in accordance with the laws of the State of New York. The parties agree to the exclusive jurisdiction of the state and federal courts located in New York City with respect to any claim related to this Agreement.
If any provision of this Agreement is found by a court of competent jurisdiction to be void, voidable, or unenforceable, it is the intention of the parties that such court does not construe the entirety of this Agreement to be thereby unenforceable, but rather that such court construe the remainder of the Agreement so as to preserve the Agreement and to give effect to the intention of the parties to be legally bound hereunder. This Agreement, together with all exhibits hereto, constitutes the full, complete understanding of the parties as to the subject matter hereof, and all prior representations, understandings and agreements regarding the subject matter hereof, whether written or oral, expressed or implied, are superseded by this Agreement and shall be of no effect. This Agreement may not be altered, modified or supplemented, except by a written amendment which is duly executed by an authorized representative of Sermo and Customer.
No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, except as expressly provided in this Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise. No waiver by a party of any breach or default by the other party of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default, and no waiver by either party hereunder shall be effective unless agreed to pursuant to a writing signed by an authorized representative of each party.
Nothing in this Agreement shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between the parties hereto, and neither party shall have the authority or power to bind the other party, or to contract in the name of the other party, in any manner or for any purpose.