Terms and Conditions
These Citruslabs Terms & Conditions (“T&C”) govern transactions entered into between Customer (as defined below) and MindMate Inc. (“Citruslabs”) pursuant to Order Form(s) (as defined below) and SOW(s) (as defined below).
BY ACCEPTING THESE T&C, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, SOW, OR OTHER DOCUMENT THAT REFERENCES THESE T&C, BY USING (OR MAKING ANY PAYMENT FOR) THE CITRUSLABS SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE T&C, YOU: (i) AGREE TO THESE T&C ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”); (ii) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE T&C. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE T&C, YOU MUST NOT ACCEPT THESE T&C AND MAY NOT USE THE CITRUSLABS SERVICES OR PLATFORM.
Citruslabs and Customer may be individually referred to as “Party” or collectively as “Parties”. The Customer Agreement combined with all Order Forms or SOWs are collectively referred to as the “Agreement” and govern the relationship between the parties with respect to any Services ordered pursuant to any Order Form or SOW.
1. Definitions
1.1. “Authorized User” means any employee, staff member, or intern authorized by Customer to access the Services pursuant to the terms of this Agreement, and subject to any limitations or restrictions set forth on the applicable Order Form.
1.2. “Marketing Claim” means any statement made to consumer(s) regarding Customer’s product or service.
1.3. “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the business, products, services or operations of either Party that has been identified as confidential, or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, but not limited to: (a) trade secrets, inventions, ideas, processes, computer source and object code, algorithms, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (b) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents; (c) information regarding the skills and compensation of the disclosing Party’s employees, contractors, and other agents; and (d) the existence of any business discussions, negotiations, or agreements between the disclosing Party and the recipient or any third party.
1.4. "Customer Data” means the (1) data or content provided by Customer or its Authorized Users and/or (2) data collected from study subjects during Customer's clinical trials or consumer perception studies, as defined in the Order Form or SOW.
1.5. “Fees” mean the fees and charges set forth in the applicable Order Form.
1.6. “Citruslabs Service” means Citruslabs provides Customer with services relating to clinical trial management or consumer perception study management as defined in an Order Form or SOW.
1.7. “Order Form” means an order form, executed by both Parties, that sets forth the Services ordered, the applicable term thereof, and the schedule of payments for the provision of the Services, and any unique additional terms.
1.8. “Services” mean the Citruslabs Service and any other services ordered by Customer, to be provided by Citruslabs, as set forth in an Order Form.
2.Confidential Information
2.1. Use and Disclosure. During this Agreement, each Party will have access to the other Party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each Party’s obligations, under this Agreement, each Party agrees as follows: (a) to not use, disclose or reproduce the Confidential Information disclosed by the other Party for any purpose other than exercising its rights and performing its obligations as described herein; (b) to protect the disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; and (c) to limit access to the disclosing Party’s Confidential Information to such of its employees, contractors and advisors, who have a need to know and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement (each a “Representative”). The recipient will be liable for the acts and omissions of its Representatives with respect to the discloser’s Confidential Information.
2.2. Exceptions. The provisions of Section 2.1 will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the recipient; (b) is already known by the recipient without obligation of confidentiality; (c) is independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information; or (d) is lawfully received from a third party without obligation of confidentiality. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) by regulatory requirements, (ii) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (iii) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
2.3. Return; Remedies. Upon termination of this Agreement, the recipient will return to the disclosing Party or destroy all copies of the disclosing Party’s Confidential Information, other than copies of any computer records and files containing information which have been created pursuant to a Party’s automatic electronic archiving and back-up procedures, which shall continue to be subject to the other terms of this Agreement. Each Party agrees that any actual or threatened breach of this Section 2 will constitute immediate, irreparable harm to the innocent Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
3. Proprietary Rights
3.1. Customer Data. As between Customer and Citruslabs, Customer retains all rights, titles, and interests in and to the Customer Data. Customer grants to Citruslabs a nonexclusive license in Customer Data: (a) during the Term, to use the Customer Data in connection with the performance of the Services on behalf of Customer; (b) on a perpetual basis, in connection with case studies, in which Citruslabs is allowed to use publicly available data that Customer shared about their study or otherwise publishes; and (c) to be used and distributed in an aggregate and de-identified form for its own business purposes.
3.2. Citruslabs Service. Citruslabs retains all rights, titles, and interests in its intellectual property and business, including the Citruslabs Service, any and all related trade secrets, methodologies, processes, tools, procedures, systems, software, copyrights, patents, inventions, confidential or proprietary information or data, and any Citruslabs trademarks and service marks. Unless otherwise expressly set forth in any Order Form, and except for any Customer Data, all work product or services provided or developed pursuant to this Agreement or any Order Form (including any modifications and improvements to any Citruslabs Service), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Citruslabs. All rights not expressly granted to Customer in this Agreement are reserved by Citruslabs.
3.3. Feedback. Citruslabs, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer, including Authorized Users, to Citruslabs in connection with its access to and use of the Services (all reports, comments, and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Citruslabs a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Citruslabs products and services.
4. Fees and Payment
In consideration for the rights granted to Customer and the Services performed by Citruslabs under this Agreement, Customer will pay Citruslabs the Fees according to one or more executed Order Form(s). Except as set forth in an Order Form, all Fees are billed in advance and payable to Citruslabs within fourteen (14) days of the date of the invoice. Citruslabs reserves the right (in addition to any other rights or remedies Citruslabs may have) to discontinue the Citruslabs Service and suspend all Authorized Users’ and Customers’ access to the Citruslabs Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Interest will accrue on late payments at five percent (5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All Fees will be paid in U.S. dollars. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise, and other taxes and applicable export and import fees, customs duties, and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Citruslabs’ net income. Citruslabs will be entitled to its reasonable attorneys’ fees and costs, in addition to any other relief to which it may be entitled, in any court action in law or equity seeking to enforce this Section 4 of the Agreement.
5. Marketing
Except as otherwise agreed to in an Order Form or SOW, (a) Citruslabs may publicly refer to Customer, including on Citruslabs’ website and in sales presentations, as a Citruslabs customer and may use Customer’s logo for such purposes; (b) Customer may publicly refer to itself as a customer of the Citruslabs Service, including on Customer’s website and in sales presentations; (c) Citruslabs may utilize publicly available data on the Customer's clinical trial or consumer perception study to create a case study, and (d) each Party hereby grants the other a limited, worldwide, license to use the other’s logo in conformance with such Party’s trademark usage guidelines and solely for the purpose set forth in this Section or the applicable Order Form. Each party may issue press releases publicly announcing this relationship subject to the approval of the other Party, such approval not to be unreasonably withheld.
6. Marketing Claims
Information on Customer’s Marketing Claims is provided for educational and informational purposes only. Any examples of potential Marketing Claims offered by Citruslabs are not intended as legal advice or guidance, and the Customer is solely responsible for choosing which Marketing Claims it will or will not make, and for determining whether any such Marketing Claim is substantiated. Citruslabs does not endorse any specific Marketing Claims and does not guarantee the accuracy, reliability, or completeness of any Marketing Claim, and does not warrant or represent that any Marketing Claim is substantiated. The information contained in Citruslabs’ reports is not a substitute for professional legal advice. Any Customer seeking to make Marketing Claims based on the results of a clinical study should consult a qualified attorney to discuss the legal and regulatory requirements governing such Marketing Claims. Citruslabs shall not be liable for any damages or losses arising from Marketing Claims which are based on, relied on, reference to or otherwise relate to Citruslabs studies, or any reliance on the accuracy or completeness thereof, including damages or losses related to any required substantiation thereof. The Citruslabs Tested Seal™ is not intended and shall not be construed, or represented, as an endorsement for any specific Marketing Claims regarding Customer’s product or service, including but not limited to information provided through Citruslabs’ Service or any Customer Data, nor shall it be used in any way that suggests that a Customer product or service is made by, comes from, is affiliated with, endorsed by, or sponsored by Citruslabs.
7.Representations; Warranty Disclaimer; Limitations on Liability
7.1. Representations. Each Party hereby represents and warrants and covenants: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that the 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. Customer further represents and warrants: (i) it has all rights necessary to provide any and all data, and other materials that it may make available to Citruslabs under this Agreement, including all Customer Data, and that Citruslabs’ use of such data, and other materials in accordance with this Agreement will be accurate, substantiated and does not and will not infringe, misappropriate, or otherwise violate any privacy or proprietary rights of a third party; (ii) Customer and its Authorized Users’ use of the Services shall comply with all applicable laws, rules and regulations.
7.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. CITRUSLABS DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THE TRUTH OR SUBSTANTIATION OF ANY MARKETING CLAIM PROVIDED TO CUSTOMER THROUGH THE CITRUSLABS SERVICE OR THAT THE CITRUSLABS SERVICE WILL BE ACCURATE, WITHOUT INTERRUPTION, SECURE OR ERROR-FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CITRUSLABS IS RELYING ON CUSTOMER TO SUPPLY, REVIEW, AND PROVIDE FINAL APPROVAL TO ANY MARKETING CLAIMS AND THAT CUSTOMER IS SOLELY RESPONSIBLE TO ENSURE THAT SUCH MARKETING CLAIMS MEET ALL APPLICABLE LAWS AND LEGAL REQUIREMENTS INCLUDING WITHOUT LIMITATION, SECTION 5 OF THE FTC ACT.
7.3. Disclaimer of Certain Damages. IN NO EVENT SHALL CITRUSLABS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL CITRUSLABS BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
7.4. Limitations on Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER ANY ORDER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY CITRUSLABS UNDER SUCH ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
8. Indemnification
8.1. Citruslabs Indemnity. Citruslabs will indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court, arbitrator, or other tribunal of competent jurisdiction, or agreed upon in settlement, as well as all reasonable and related attorneys’ fees, expert fees, court costs, arbitrator or mediator costs, fines, sanctions, penalties, litigation vendor costs, or other related charges (collectively “Losses”) arising out of any third party claim alleging that the Citruslabs Service infringes, misappropriates or violates any copyright, trademark or trade secret.
8.2. Exclusions. Section 8.1 will not apply if the alleged claim arises, in whole or in part, from: (a) any use of the Citruslabs Service by any Customer or any Authorized User not in accordance with this Agreement; (b) any modification of the Citruslabs Service by any person other than Citruslabs or its authorized agents; (c) the Customer Data; (d) any use of the Citruslabs Service in combination with other products, equipment, software or data not supplied by Citruslabs; (e) any Marketing Claim; (f) any and all claims related to a product or service that is not the Citruslabs Service, including but not limited to Customer’s products or services; or (g) Customer’s or any Authorized User’s use of any information contained in a clinical study produced by Citruslabs in accordance with this agreement to make a Marketing Claim (any of the foregoing circumstances under clauses (a), (b), (c), (d), (e), (f), and (g) will be collectively referred to as a “Customer Indemnity Responsibility”).
8.3. Customer Indemnity. Customer will indemnify, defend and hold harmless Citruslabs, its directors, officers, employees and representatives (each a “Citruslabs Indemnified Party”), from and against any and all Losses (as defined above in Section 8.1) arising out of any third party claim or demand, enforcement action, investigation, third party subpoena, or other legal or equitable demand (including any reasonable time spent by Citruslabs in preparing and responding to such claim, action, investigation, subpoena, or other demand) arising out of or relating to any Customer Indemnity Responsibility.
8.4. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified Party: (a) notifying the indemnifying Party promptly in writing of such action; (b) reasonably cooperating and assisting in such defense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying Party with the understanding that the indemnifying Party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified Party, without the indemnified Party’s consent.
8.5. Customer’s Sole Remedy. In the event that Customer claims an error in any CitrusLabs Service, Customer’s sole remedy from such claimed error is to receive a corrected study or other reasonably appropriate correction to the CitrusLabs Service.
9. Term and Termination
9.1. Term. This Agreement will begin on the Effective Date (as indicated in the Cover Page) and shall continue as specified in your Order Form (the “Initial Term”), automatically renewing thereafter for successive periods of twelve (12) months each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated in accordance with this Section 9.
9.2. Notice of Non-Renewal. Unless otherwise specified in your Order Form, to prevent renewal of the Services, Customer or Citruslabs must give written notice of non-renewal. The deadline for sending this notice is thirty (30) days before the contract end date as defined in Customer’s Order Form.
9.3. Early Cancellation. You may choose to cancel the Order Form early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Service(s) Fees, and you will promptly pay all unpaid fees due through the end of the Initial Term, as stated in your Order Form. Citruslabs reserves the right to cancel the Services at any time before the completion of the Initial Term or any Renewal Term for any reason. Customer will receive a refund for any prepaid fees that cover the unused portion of the Services for the remaining Term after the effective date of termination. However, Customer will remain responsible for the payment of all fees incurred up to the effective date of termination.
9.4. Termination for Cause. Either Party may terminate this Agreement or any Order Form effective immediately upon written notice to the other if the other Party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice. Further, Citruslabs may terminate this Agreement or any Order Form (a) in accordance with Section 9.3 above or as otherwise expressly set forth in this Agreement or any Order Form; or (b) immediately upon notice to Customer in the event of a change in laws, rules, or regulations, which would cause Citruslabs or any Service to fall out of compliance with such laws, rules, or regulations, or which otherwise would interfere with Citruslabs’ provision of any Service.
9.5. Suspension of Service(s). At any time during the Term, Citruslabs may, immediately upon notice to Customer, suspend access to any Service, at its discretion, including for a threat to the technical security or ethical integrity of the Services.
9.6. Termination Upon Bankruptcy or Insolvency. Each Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event: (a) that either Party becomes insolvent or unable to pay its debts when due; (b) either Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) either Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of a Party’s creditors.
9.7. Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to Citruslabs before such termination or expiration will be immediately due and payable; (b) all rights and obligations of both Parties, including all licenses granted hereunder, will immediately terminate; and (c) each Party will return to the other all property (including any Confidential Information and Customer Data) of the other Party. Sections 1, 2, 3, 4, 6, 7, 8, 9, and 10 will survive any expiration or termination of this Agreement.
10. General
10.1. Independent Contractor Status. Citruslabs, in performance of this Agreement, is acting as an independent contractor of Customer. Employees or contractors supplied by Citruslabs are not Customer employees or agents. Citruslabs assumes full responsibility for its employees’ or contractors’ actions or inactions and compliance with any applicable laws (including, without limitation, employment and tax laws) with respect to such employees or contractors. This Agreement does not create a joint venture or partnership between the parties.
10.2. Assignment. This Agreement cannot be assigned by either Customer or Citruslabs without the prior written consent of the other; provided, however, that Citruslabs may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business. Any attempted assignment or delegation in violation of this Section will be null, void and of no effect.
10.3. Notices. All notices pursuant to this Agreement will be in writing and delivered either personally, by email, by certified overnight delivery, or certified USPS mail, and sent to the (email) addresses set forth on the Cover Page or to such other address as a Party may later specify by giving notice to the other Party.
10.4. Governing Law; Disputes. This Agreement will be governed by the laws of the State of California, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or Federal courts located in Los Angeles, California and both Parties hereby submit to the jurisdiction and venue of such courts.
10.5. Remedies. Customer acknowledges that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to Citruslabs for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
10.6. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.7. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.8. No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.9. Construction. The Parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting Party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including, but not limited to.”
10.10. Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failure of the internet or any other communications network outside such Party’s control, or any other event beyond the control of such Party. The affected Party will use reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
10.11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both Parties. In the event of any conflict between any provision in any Order Form and a provision in this Agreement, the provision in the applicable Order Form will prevail.