Terms and Conditions 

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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).

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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       “Access Protocols” mean any login information, passwords, security protocols, policies and procedures through which Authorized Users access a Citruslabs Service.

1.2       “Authorized User” means any employee physician or 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.

1.3       “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 patients of Customer or from Patient Recruitment Providers.

1.5       “Documentation” means any documentation made available by Citruslabs to Customer or Authorized Users that describes the features, functionality or operation of the Citruslabs Service.

1.6       “Error” means a reproducible failure of the Citruslabs Service to substantially or materially conform to the Documentation.

1.7       “Fees” mean the fees and charges set forth in the applicable Order Form.

1.8    “Citruslabs Platform” means Citruslabs’ cloud-based proprietary platform which A) stores patient data provided by (1) Customer or its Authorized Users, or (2) Patient Recruitment Vendors and allows Customer and its Authorized Users to access, view, edit, download, and/or annotate such patient data; B) provides Patient Engagement to run patient recruitment campaigns that make potential patients interested in your clinical trials; C) provides Task Management related to patient recruitment campaigns for Customer or its Authorized Users.

1.9    “Citruslabs Service” means Citruslabs provides Customer with services relating to patient recruitment by providing potential study candidates via Citruslabs’ Platform for the purpose of Customer’s clinical studies as described in one or more Order Forms. 

1.10    “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.  If the Cover Page contains an order for any Services, the Cover Page will be deemed an Order Form.

1.11    “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.           Access, Rights and Restrictions

2.1      Access Grant.   Subject to Customer’s compliance with the terms and conditions contained in this Agreement and provision of any necessary data or information reasonably requested by Citruslabs in order to provide the Citruslabs Service, Citruslabs hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to allow Authorized Users to access and use the Citruslabs Platform in accordance with the terms and conditions described in the applicable Order Form (the “License”) for the term specified therein. Customer acknowledges and agrees that each Authorized User’s access to and use of the Citruslabs Service is subject to such Authorized User’s agreement to Citruslabs privacy policy and terms of use, as may be amended from time to time.

2.2      Access Protocols. Customer will ensure that all Authorized Users accept the terms of use for the Citruslabs Service prior to providing any Access Protocols or otherwise providing access to the Citruslabs Service. Customer will notify Citruslabs immediately if it learns of any unauthorized use of any Access Protocols or any other known or suspected breach of security.

2.3      Customer Restrictions. Customer will not, and will not authorize or permit any Authorized User or third party to: (a) knowingly interfere with or disrupt the integrity or performance of the Citruslabs Service or the data contained therein; (b) adapt, alter, modify, improve, translate or create derivative works of the Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Services; (d) use the Services to build a similar or competitive product or service; (e) except as may be specifically provided in an Order Form, or otherwise approved by Citruslabs in writing, sublicense or provide any third party (other than Authorized Users) access to the Citruslabs Service or use the Services on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment; or (f) otherwise use the Services in any manner that exceeds the License permitted under Section 2.1, the Documentation, this Agreement or applicable law.

2.4       Audit.  During the Term of this Agreement and for two (2) years thereafter (i) each party shall have the reasonable right to inspect the other party’s records solely as they relate to Customer’s account to ensure compliance with the terms and conditions of this Agreement and (ii) each party shall maintain complete and accurate records of such compliance with this Agreement. Such inspections shall occur no more frequently than once per year, upon at least ten (10) business days advance written notice to the party subject to the audit, and shall not disrupt such party’s business operations.

 

3.           Confidential Information and HIPAA

3.1      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.

3.2      Exceptions. The provisions of Section 3.1 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.

3.3       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 3 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.

3.4       HIPAA.  Customer agrees that Citruslabs will not need or have access to “protected health information” (“PHI”) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”) to perform the Services under the Agreement. Customer shall make reasonable efforts to restrict disclosure of Customer Data that constitutes PHI to Citruslabs. Solely to the extent that Citruslabs begins to provide services to Customer that require access to Customer Data that constitutes PHI, Citruslabs and Customer agree to enter into a HIPAA Business Associate Agreement at such time, a copy of which is attached hereto as Schedule A and incorporated into the terms of the Agreement. The parties agree not to use or further disclose any PHI, as defined in the Federal Privacy Regulations, other than as permitted by the terms of this Agreement, consistent with HIPAA requirements.

 

4.           Proprietary Rights

4.1      Customer Data. As between Customer and Citruslabs, Customer retains all right, title and interest in and to the Customer Data.  Customer grants to Citruslabs a nonexclusive license: (a) during the Term, to use the Customer Data in connection with the performance of the Services on behalf of Customer; and (b) on a perpetual basis, in connection with Citruslabs’ business, provided that the Customer Data is aggregated with the data of other customers and anonymized so that it cannot be re-identified with Customer, any Authorized User, or any other individual.  All rights in and to the Customer Data not expressly granted to Citruslabs in this Agreement are reserved by Customer.

4.2       Citruslabs Service. Except for the limited licenses and access grant provided to Customer in this Agreement, Citruslabs retains all right, title and interest in its intellectual property and business including the Citruslabs Service, Documentation 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.

4.3       Continuous Development. Customer acknowledges that Citruslabs may continually develop, deliver and provide to Customer ongoing innovation to the Citruslabs Platform, in the form of new features, functionality, and efficiencies. Accordingly, Citruslabs reserves the right to modify the Citruslabs Platform & Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Citruslabs adds additional functionality to the Citruslabs Platform & Service, Citruslabs may condition the implementation of such modifications on Customer’s payment of additional fees, provided, however, that Customer may continue to use the version of the Service that Citruslabs makes generally available (without such features) without paying additional fees for the remainder of the then-current Term.

4.4      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.

 

5.           Professional and Support Services

5.1      Professional Services; Training and Support.  Customer may request that Citruslabs provide certain professional services related to Customer’s use of the Services, including, by way of example, implementation services, end user support, technical support, customization or training of Customer personnel.  Unless otherwise agreed to by the Parties in a separate statement of work that includes all material terms of such professional services, Citruslabs will have no obligation to provide or perform such services for or on behalf of the Customer.  All professional services shall be performed in accordance with all laws, rules and regulations applicable to Citruslabs’ performance of such services.

5.2      Exclusions.  Citruslabs shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or its Authorized Users’ use of any version of the Citruslabs Service other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Citruslabs; (d) nonconformities resulting from abuse, negligence, or use of all or any part of the Citruslabs Service, or Documentation in noncompliance with this Agreement; (e) problems or Errors caused by Customer’s, Authorized Users’, or other third party’s products, services or equipment, except if the causal action was carried out upon the written recommendation of Citruslabs; or (f) modification, amendment, revision, or change to the Citruslabs Service by any party other than Citruslabs or Citruslabs-authorized representatives, except if the modification, amendment, revision, or change was carried out upon the written recommendation of Citruslabs.  Any use of or reliance on data or data output contained in the Citruslabs Service is Customer’s or Authorized User’s responsibility.

 

6.           Fees

6.1      Fees; Payment.  In consideration for the rights granted to Customer and the Services performed by Citruslabs under this Agreement, Customer will pay to 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. 

 

7.           Marketing.

Except as otherwise agreed to in an Order Form, (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; and (c) 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.

 

8.           Representations; Warranty Disclaimer; Limitations on liability

8.1      Representations.  Each Party hereby represents and warrants: (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, documentation and other materials that it may make available to Citruslabs under this Agreement, including all Customer Data, and that Citruslabs’ use of such data, documentation and other materials in accordance with this Agreement 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.  

8.2      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, THAT THE CITRUSLABS SERVICE WILL BE ACCURATE, WITHOUT INTERRUPTION, SECURE OR ERROR-FREE.

8.3      Disclaimer of Certain Damages. IN NO EVENT SHALL EITHER PARTY 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.

8.4      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.

 

9.         Indemnification.

9.1    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 or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that the Citruslabs Service infringes, misappropriates or violates any copyright, trademark or trade secret.

9.2    Exclusions. Section 9.1 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 or as specified in the Documentation; (b) any modification of the Citruslabs Service by any person other than Citruslabs or its authorized agents; (c) the Customer Data; or (d) any use of the Citruslabs Service in combination with other products, equipment, software or data not supplied by Citruslabs (any of the foregoing circumstances under clauses (a), (b), (c) and (d) will be collectively referred to as a “Customer Indemnity Responsibility”).

9.3    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 arising out of any third party claim arising out of or relating to any Customer Indemnity Responsibility.

9.4    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

9.5    Infringement and Compliance with Laws.  If the Citruslabs Service is, or in Citruslabs’ opinion, is likely to become the subject of any infringement-related claim or a claim that the Citruslabs Service is not in compliance with applicable laws, rules and regulations, then Citruslabs may, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the infringing or non-compliant technology or material so that the Service becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Order Form(s) pursuant to which the Citruslabs Service is provided and give Customer a refund for any pre-paid but unused fees. THE PROVISIONS OF THIS SECTION 10.5 STATE CITRUSLABS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT OR VIOLATES OR IS OTHERWISE NOT IN COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS.

 

10.         Term and Termination

10.1    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 10. 

10.2    Notice of Non-Renewal.  Unless otherwise specified in your Order Form, to prevent renewal of the Services, Customer of 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. 

10.3    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.

10.4    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 9.5 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.

10.5    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 technical integrity of the Services.

10.6    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.

10.7    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, 3, 4.1(b), 4.2, 4.5, 6, and 8 through 11  will survive any expiration or termination of this Agreement.

 

11.         General

11.1    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.

11.2    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.

11.3    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.

11.4    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.

11.5    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. 

11.6    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.

11.7    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.

11.8    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.

11.9    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.”

11.10  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.

11.11  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.

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