RealTime Terms and Conditions

1. Preamble
2. Term
3. Termination
4. Conversations Data Licensed Application and RealTime Platform
5. Sermo Promo Services
6. Effect of Termination
7. Content Responsibilities
8. Pharmacovigilance & Safety Information handling
9. Non solicitation
10. Customer Responsible for All Consultants, Agents and Vendors
11. Confidential Information
12. Payment Terms
13. Warranty and Warranty Disclaimer
14. Limitation on Liability
15. Miscellaneous

Update: 1 Feb 2022

Description of Services

Sermo RealTime is a quick-turnaround survey platform which provides instant access to our proprietary global network of +1.3M HCPs. The platform was built in-house, is centrally hosted and licensed to clients on a subscription license basis, similar to a SaaS model; Upon signature of a license, we grant Customers a non-exclusive and non-transferable right to access and use the Sermo RealTime proprietary online website focusing on healthcare insights collection from medical experts and practitioners;
Sermo will provide the Customer with up to (10 usernames/passwords) to access Sermo’s proprietary RealTime web portal (“Sermo RealTime”) which enables Customer to interact with Sermo’s panel of healthcare professionals (“Panel HCPs”); Access to Sermo RealTime will remain in effect for (12) months from the license Effective Date.
Subject to the corresponding usage limits designated in the license, the platform enables Customer to set-up and launch Surveys comprising up to (5) screeners questions, followed by a max of (20) survey questions to a designated number of Panel HCPs, targeted by Specialty & Country and/or Customer List Match.
Sermo will be responsible for soliciting Eligible HCPs to participate in any Survey. "Eligible Panel HCPs" are those Panel HCPs who have registered with Sermo (or partners) to receive engagement invitations and communications from Sermo. Targeting of Eligible Panel HCPs for a Survey will be performed consistently with Sermo’s standard policies and practices based on information available to Sermo at the time of targeting, and Sermo’s interpretation of the targeting criteria provided by Customer.
Sermo will use reasonable efforts to recruit the required number of Eligible Panel HCPs for the Survey, but Sermo will not be responsible for any shortfall in the number of answers whether because the actual incidence is less than the estimated incidence, a material number of recruited Eligible Panel HCPs fail to perform the Survey, or Customer changes the specifications or screening criteria for the Survey. In addition, Sermo will not be responsible for the accuracy of Panel HCP profile information or any Panel HCP responses to qualifying questions.
Sermo will process any honoraria payments to Panel HCPs responding to Customer’s surveys under RealTime.
All data derived from Customer surveys in the RealTime Website during the term of the license, shall become sole and exclusive property of the Customer. Customer shall receive access to survey findings and raw data, & analytics report. Data can be reviewed in various formats (PDF, Excel, .CVS, Word, PPT). Customer shall also have access to Dashboard Analytics an interactive analytics tool for visualizing survey findings throughout your project.
Survey findings will be accessible through Sermo RealTime during the term of the license.

Standard Service Terms and Conditions

1. Preamble

These Standard Service Terms and Conditions (“STCs”) govern the Sales Order by and between Sermo Inc. a company incorporated under the laws of the State of Delaware with a principal place of business at 200 Park Avenue South, Suite 1310, New York NY 10003 (the “Sermo”) and the Customer Company purchasing the RealTime license by the means of a Sales Order (“The Customer”) as of the effective date documented by such Sales Order (the “Effective Date”).

2. Term

These Service Terms and any current Sales Order shall continue for the term of (12) months from the Effective Date or, unless otherwise set forth in a Sales Order (“Term”). Subsequent signed Sales Orders can also be agreed by reference to the Effective Date of these Service Terms, which Service Terms shall be then incorporated by reference.

3. Termination

All Sales Orders may be terminated in accordance with the termination schedule in the applicable Sales Order. In case no termination rights are included in the Sales Order, such Sales Order is not cancelable and non – refundable except in the event that the other party hereto is in material breach of its obligations and covenants set forth herein and such breach has not been cured within a period of thirty (30) days after the non-breaching party has provided the party in breach with a written notice of such breach and a reasonably detailed explanation thereof. Upon any termination of this Sales Order, Customer will (i) immediately discontinue all use of the Services and any Sermo Confidential Information; and (ii) promptly pay to Sermo all amounts due and payable under this Agreement.

Sermo Digital Market Research Services and Promotional Services

4. Conversations Data Licensed Application and RealTime Platform

During the Term, subject to the terms of this Agreement, Sermo hereby grants to Customer a non-exclusive and non-transferable right to access and use the proprietary online website focusing on healthcare (the “Website”) by the collection of information from medical experts and practitioners (“Conversations Data” and “RealTime”) or by using the Website for promotional content (“Promo”) (together all services “Application Services”) solely for Customer’s internal business purposes in accordance with this Agreement. Customer may only provide access to the Website and Application Services to its employees or contractors and solely by means of a unique password issued by Sermo to Customer. Customer is responsible for safeguarding the confidentiality of its password(s) and username(s) created by Customer for use on the Sermo Website, 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. As between Sermo and Customer, ownership of and all rights, title and interest in and the Website, Sermo Conversations data and Application Services 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 the Website and Application Services pursuant to these terms and conditions.

4.1

Customer will not (i) use the Sermo Application Services in a way that was not intended in accordance with the scope of the Sales Order including without limitation bulk data download of the entire database, personal data collection through the RealTime Application, usage of machine learning for purposes of search words to allow bulk data download and saving bulk data on Customer’s data base for future usage post termination of the Sales Order; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Website or the Application Services are 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) resell the Sermo Conversations data or create any derivative product or database from the Sermo Conversations data, except with the prior written consent of Sermo; or (iv) allow third parties other than Customer employees or contractors who has the need to access the Services to gain access to the Website or the Application Services; (v) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this section.

4.2

Customer will ensure that its use of the Website, Sermo Conversations data and the Application Services complies with all laws, statutes, regulations or rules applicable to Customer’s use thereof in the territories where Customer is using same. Likewise, Sermo will ensure that it’s operation of the Website and delivery of the Application Services and other Services will comply with any applicable laws, statutes, regulations or rules.

5. Sermo Promo Services

During the Term, subject to the terms of this Agreement Sermo will facilitate Customer promotional content on Sermo Website. Customer hereby understands and agrees that the Sermo has two distinct performance obligations required to be satisfied as part of the Promo Services under this Agreement. The first performance obligation involves the development and programming of online advertising material and inventory reservation for providing the services. The second requires the Sermo to display the designed online material on the Company’s website.

6. Effect of Termination

6.1 Conversations Data

6.2 RealTime Application

After termination of the Sales Order or the Services, whichever comes first Customer acknowledges represents and warrants that the right for usage of the Sermo Website is fully revoked. However, subject to fully paid invoices by Customer, all data derived from the surveys run by the Customer through RealTime Website during the Term shall become the sole and exclusive property of Customer.

6.3 Promo Services

All Customer Content and other materials provided by Customer are and shall remain the sole and exclusive property of Customer.

7. Content Responsibilities

7.1 Customer Content

8. Pharmacovigilance & Safety Information handling

8.1

Sermo Full-Service Packages, which include Pharmacovigilance & Safety Information handling are offered for all Sermo Services but must be contractually agreed in the Sales Order. Sermo does not access or review any data or content which goes directly to Customer and is not part of Sermo full-service package (including without limitation Sermo Conversation Data). As a result, unless specifically specified in the Sales Order, Customer has sole responsibility for all Safety Information ("SI") handling that may be required.

8.2

8.2. Sermo may assist in following up with respondents as may be reasonably requested by Customer in writing, if necessary for Customer’s compliance with Safety Information 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.

8.3 Other Website or Services Content

All healthcare professionals contributions to the Website and Application Services are published by such healthcare professionals (“Users”). Therefore, Sermo has no editorial control over such content nor any responsibility for the accuracy or completeness thereof. Any opinions, advice, statements, services, or other information or content expressed or made available as part of the Website or the Application Services are those of the respective Users. Sermo does not guarantee the accuracy, completeness, or usefulness of any content found on the Website or the Application Services. Under no circumstances will Sermo be liable for any loss or damage caused by Customer’s reliance on any content found on the Website or via the Application Services. 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.

9. Non solicitation

Sermo shall use commercially reasonable efforts to perform the Services as set forth in any Sales Order. Sermo shall perform the Services in accordance with industry standards. Customer acknowledges and agrees that the employees and consultants of Sermo who perform the Services are a valuable asset to Sermo and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any Sermo employee or consultant who performs any of the Services. This restriction shall not apply to any such employee or consultant whose employment or consultancy was terminated by Sermo or who independently responds to a publicly placed job posting.

10. 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.

11. 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.

12. Payment Terms

12.1

12.1. For Promo Services, Sermo reserves the right to consider campaigns within 10% of the contracted goal at the end of the campaign delivered unless otherwise agreed in writing. In such event, Sermo will have no obligation to deliver a “make good” and Sermo will invoice, and Customer will pay, for impressions actually delivered based on the contracted rate and without regard to any short rate.

12.2

13. 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, THE SERMO WEBSITE, APPLICATIONS 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 THE SERVICES, THE SERMO WEBSITE AND ITS USE OF ANY INFORMATION OBTAINED THROUGH THE SERMO WEBSITE AND THE SERVICES. SERMO WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USER CONTENT PROVIDED ON OR MADE AVAILABLE VIA THE SERMO WEBSITE OR SERVICES.

14. Limitation on Liability

EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY 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 EITHER PARTY 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.

15. Miscellaneous

15.1. Third Party Interactions

15.2. General

15.3

This Agreement shall be governed and construed in accordance with the laws of the State of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 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.

15.4

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 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.

15.5

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.

15.6

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.