These Service Terms: Emergo by UL Advisory Services (the “Service Terms”) apply to an order that incorporates these Service Terms by reference (an order may be in the form of a statement of work, proposal, quote, order confirmation, or other form of order agreed by the parties, any of which is referred to here as the “Quote”). These Service Terms relate to advisory services offered by Emergo by UL in the areas of market access, human factors research and design, or other subjects (the “Services”), as detailed in the Quote agreed to between the client identified in that Quote (the “Client”) and the Emergo by UL company identified in that Quote (“Emergo”).
Services are governed by these Service Terms, the terms of the Quote, and the additional agreement or terms incorporated by reference in the Quote (such as a Global Services Agreement or other form of master agreement), referred to collectively as the “Service Agreement.” In the event of any inconsistency or conflict between these Service Terms and other terms of the Service Agreement, these Service Terms will govern (but only with respect to the Emergo Services subject to these Service Terms).
1. Services.
1.1 Emergo warrants to Client that Services will be performed in accordance with the Service Agreement and generally recognized industry standards for similar services. Client may provide Emergo written notice of any deficient Services promptly after discovery of the deficiency, but in no event more than six months after completion of the Services. If Emergo breached the foregoing warranty, Emergo will promptly re-perform, at its own expense, the deficient Services (or the deficient parts thereof) as to which it received timely notice. In the event a breach is not cured in accordance with these terms, or the parties agree that as a practical matter the breach cannot be cured, Client will be entitled to an alternate remedy of a refund (if the applicable fees were previously paid) or credit (if the applicable fees were not previously paid) for fees charged for deficient Services, in an amount proportionate to the extent of the uncured breach. The warranty set forth in this paragraph is exclusive, and any other warranties or guarantees (including, without limitation, any guarantee as to a particular result or as to the action or position that a governmental authority may take) are disclaimed and waived. The foregoing warranty does not apply to any non-final draft deliverables that Emergo may share with Client. This clause survives a termination of the Service Agreement.
1.2 Client agrees to provide Emergo such information, documents, directions, approvals, materials, and cooperation as may be necessary or appropriate for Emergo to perform the Services. Client represents and warrants that all information and data provided to Emergo by Client, or on its behalf, is complete and accurate and may be relied upon by Emergo to provide Services. If any such information or data is incomplete or inaccurate, Emergo will not be liable in any manner for any related deficiencies in the Services.
1.3 If Emergo’s performance of its obligations under the Service Agreement is delayed or prevented by Client’s act or omission, Emergo will be excused from performance until such delay or prevention is cured, and any affected timelines shall be correspondingly extended. Any prospective timelines or delivery dates for Services are non-binding estimates unless expressly stated otherwise in a Quote.
1.4 If and where necessary to perform the Services, Emergo may translate or outsource the translation of Client’s documentation. Any such translations are for the limited purpose of the Services, and if Client uses such translations for any other purpose, it assumes any risk of such use. Deliverables intended for submission to a regulatory authority will be in the language required by such authority, and unless otherwise expressly set forth in a Quote, Emergo is not responsible for providing a copy of such deliverables in any other language.
2. Fees and Expenses.
2.1 A Quote may set forth fees for Services on either an hourly or a flat-fee basis, if and as agreed by the parties.
2.1.1 If a Quote sets forth Services to be billed at hourly rates and includes an estimated or maximum number of hours or total cost, Emergo will not perform work in excess of such amounts without Client’s approval. Any estimates of total fees or not-to-exceed figures reflect Emergo’s good faith assessment of the time and/or costs necessary to complete that hourly Service, but do not constitute a fixed price agreement. In the event Emergo determines that the stated time or budget will not be sufficient to complete Services, Emergo will inform Client and propose a change to the Quote. If Client declines the change, Emergo will only be responsible to perform Services up to the originally stated time or budget.
2.1.2 If a Quote payable on a fixed-fee basis is terminated before completion, Client shall instead pay for those Services at an hourly basis (at Emergo’s standard hourly rates then in effect) for Services actually performed under the Quote before termination, less any amounts previously paid under that Quote.
2.2 Invoices may be issued to Client by an affiliate of Emergo, and Client’s payment of such an invoice will satisfy Client’s payment obligations to Emergo for that invoice.
2.3 If applicable, Client is responsible for amounts due to governmental authorities in connection with the Services (such as application fees associated with the submission of product registrations), translation costs, notary fees, mailing or delivery fees, printing fees, costs of journal articles or other reference materials needed to perform particular Services, or other expenses due to third parties (other than Emergo’s personnel) reasonably necessary to perform the Services. Client will pay for such expenses in accordance with Emergo’s invoices (which shall not reduce the amount due for Emergo’s Services).
2.4 If a payment to a governmental authority or other third party for which Client is responsible is made or advanced by Emergo or its affiliates, Client will make corresponding payment to Emergo, and Client will be responsible for any associated banking fees, currency exchange fees (at the OANDA kiosk buy rate), currency fluctuation risks, and administrative fees.
2.5 The termination of a Quote will not discharge Client’s obligations to pay the fees and expenses incurred before such termination and any direct costs and expenses incurred by Emergo in connection with the termination. If Client terminates a Quote before Emergo begins billable work on those Services, Emergo may charge an administrative fee of US$350.
2.6 This Section survives a termination of the Service Agreement.
3. Intellectual Property. Upon full payment of fees due, Client will be the owner of final deliverables provided by Emergo to Client in fulfillment of the Services. Notwithstanding the foregoing, Emergo will retain its rights in any methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how regarding its own business (whether the foregoing are pre-existing or developed in performance of the Services). For clarity, Emergo has no right to Client’s confidential information, intellectual property, or products.
4. Personnel and Subcontracting. Emergo will be responsible for assigning and re-assigning its personnel, as appropriate, to perform the Services. Emergo may subcontract Services to third parties, and in such event Client authorizes Emergo to disclose information (including confidential information) to the subcontractor as necessary for such performance of the Services by the subcontractor. Emergo is responsible for ensuring that its engagement of a subcontractor includes confidentiality obligations at least as stringent as those in the Service Agreement.
5. Disclaimers. Emergo and its affiliates assume no responsibility for the safety, efficacy, design, fitness, suitability, marketability, compliance, usage, or performance of any products manufactured or sold by Client or its affiliates. Emergo and its affiliates assume no responsibility for the acts or omissions of any third parties (other than Emergo’s personnel and subcontractors) that may perform work related to the subject of the Services, or for the fee policies or practices of governmental authorities or any other third parties (other than Emergo’s personnel and subcontractors), including with respect to the applicability, modification, or refundability of such fees. Although Emergo’s Services may relate to legal issues, Emergo does not provide legal advice or services and none of Emergo’s Services or deliverables shall be construed as legal advice or opinion. Emergo disclaims and Client waives any liability by Emergo or its affiliates with respect to the matters set forth in this clause.
6. Online Storage Site. Emergo may provide, free of charge, a secure online storage site for the sole purpose of sharing documents and files between Emergo, Client, and their personnel with respect to the Services (the “Site”). Client may decline to use the Site. If Client uses the Site, Emergo will provide invitations to access the Site to the individuals within Client’s organization that Client designates. Client may, by written request, ask that Emergo issue invitations to the Site to additional individuals within Client’s organization or limit, change, or remove the access available to certain of the individuals for whom it requested access, and Emergo will act on any such requests as soon as reasonably practicable. The Site may not serve as primary storage for Client’s documents, and Emergo may discontinue the Site at any time. Client is responsible for independently maintaining copies of any of its documents exchanged with Emergo. Client waives any claims against Emergo related to the use of the Site by an individual to whom Client or its agents provided credentials, or to any breach, deletion, or corruption of data that occurs despite Emergo’s use of industry standard measures to protect the security of such data. By using the Site, Client acknowledges and agrees that no data or content transmitted over Emergo’s networks, the internet, wirelessly, or through or in connection with the Site is guaranteed to be secure or free from unauthorized intrusion, and that data stored by Emergo or its service providers may be deleted, modified, or damaged. Client acknowledges that if it wishes to protect the transmission of data or files to Emergo, it is Client’s responsibility to use a secure encrypted connection to communicate with and use the Site.
7. Product Studies. This Section applies only to Services (if any) related to usability studies, usability testing, other human factors studies, or to Emergo acting in the capacity of a contract research organization (each, a “Study”).
7.1 Client will ensure that test items and materials delivered to Emergo are in stable condition and do not present any danger or risk except if and as communicated to Emergo in writing in advance of delivery. If any test items or materials present risks or otherwise require special handling (for example, if they are explosive, carcinogenic, or require particular storage conditions), Client will label the items accordingly and provide Emergo advance written notice of any such conditions. After the conclusion of a Study, the test items and/or remaining parts thereof that are in Emergo’s possession will be disposed of by Emergo, unless if at the initiation of the Services Client provided Emergo a written request that such items be returned. Client is responsible for any costs of disposal or return shipments. The shipping, storing, testing, and preparation of test items may damage or destroy any such test items, and any responsibility or liability by Emergo for such damage or destruction is disclaimed and waived. Any items Emergo ships are “ex works” (any risk of loss will pass to the recipient as soon as the test items, documents, or other materials have left Emergo’s possession).
7.2 Unless otherwise instructed or permitted by Client, Emergo will provide deliverables only to Client and Emergo will not publish Client’s Study results. Client is authorized to publish Study results prepared by Emergo, but Emergo is not responsible for any consequences of such publications or for any decisions by Client or any third party to publish only excerpts of the results. Emergo and its affiliates and personnel may engage in publications about publicly available insights, laws, standards, or test procedures developed by Emergo or its affiliates.
7.3 In the event of any claim against Emergo or its personnel or affiliates arising from Client’s products or any other test materials (including any allegation of bodily injuries suffered in the course of a Study), Client will defend and indemnify such entity or individual against resulting damages, fines, losses, and reasonable expenses (including legal fees). This clause survives a termination of the Service Agreement.
7.4 Prior to the initiation of any Study involving Client’s products, Client will secure and maintain product liability insurance that meets the following minimum requirements: (1) coverage for damages and expenses arising out of claims of injury alleged by third parties in connection with any such product; (2) limits of liability commensurate with the risks associated with the Study (in no event less than five million U.S. dollars); (3) territorial scope includes the locations where the Study is to take place; (4) coverage extended to Emergo up to the same limits of liability available to Client (the policy need not insure Emergo against liability resulting directly from its own acts or omissions, for which it carries its own insurance); and (5) coverage is continuously maintained for the duration of the Study and at least five years thereafter. Client shall provide Emergo proof of the foregoing coverage to the satisfaction of Emergo, which may take the form of a certificate of insurance or a letter of confirmation from Client’s insurance carrier (Emergo’s receipt of documentation reflecting coverage that does not meet the requirements of this clause does not act as a waiver of any such requirements). In the event of a Study-related claim subject to indemnification, Client will promptly notify its insurance carriers of such claim and Client’s coverage will be primary with respect to the claim. This clause survives a termination of the Service Agreement.
7.5 Where applicable, Studies will be conducted in accordance with Emergo’s Study Participant Privacy Policy, a copy of which is available to Client upon request at any time.