Terms of Service for OpenClinica Recruit and BuildClinical

BY EXECUTING AN ORDER FORM THAT REFERENCES THE TERMS OF SERVICES FOR OPENCLINICA RECRUIT OR BUILDCLINICAL, CUSTOMER AGREES TO THE FOLLOWING TERMS OF SERVICE (THE “AGREEMENT”).

This Agreement, effective May 9, 2025, is effective between Customer and OpenClinica, LLC (collectively, the “Parties” and each, a “Party”) as of the date of Customer’s execution of an Order Form that references this Agreement (the “Effective Date”). It includes and incorporates by reference an Order Form for the OpenClinica Recruit service or the BuildClinical service.

In consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows:

Definitions. Defined terms used in this Agreement are set forth below. The definitions for defined terms not in this section are set forth elsewhere in this Agreement, including within an Order Form.
1. “Affiliate” means, with respect to any entity, any other entity who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
2. “Applicable Law” means, with respect to a Party, any federal, state, county, and local law, ordinance, regulation, rule, code, and order applicable to that Party, including, but not limited to, the Food, Drug and Cosmetic Act (as amended) and its implementing regulations, the Health Insurance Portability and Accountability Act and its implementing regulations (HIPAA) all UK and EU data privacy regulations applicable to that Party, including the General Data Protection Regulation (GDPR).
3. “Authorized User” means an individual who has been authorized by Customer or one of its Affiliates to use the Services to support Customer’s or its Affiliates’ clinical research activities, including employees and contractors of Customer or its Affiliates and research site personnel and study participants authorized to use the Services by Customer or its Affiliates.
4. “Confidential Information” is defined in Section 6.
5. “Customer Data” means all data provided by Customer, its Affiliates, or their Authorized Users to OpenClinica.
6. “Customer Studies” means the clinical research studies carried out by Customer.
7. “Disclosing Party” is a Party or its Affiliate that discloses Confidential Information to the other Party.
8. “Documentation” means the user guides and manuals for the Services, and any other written information that OpenClinica provides to Customer describing the functional, operational and/or performance of the Services.
9. “Feedback” is defined in Section 5.
10. “Fees” is defined in Section 3.
11. “Initial Term” is defined in Section 4.
12. “Intellectual Property” means: (a) patents and patent applications; (b) Internet domain names, trademarks, service marks, trade dress, trade names, logos and entity names and registrations and applications for registration thereof together with all of the goodwill associated therewith; (c) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof; (d) mask works and registrations and applications thereof; (e) computer software (including without limitation source code), data, databases and documentation thereof; (f) trade secrets, ideas, formulas, compositions, inventions (whether patentable or not and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, programming processes and techniques, algorithms, research and development information, drawings, specifications, designs, plans, proposals and technical data; (g) other proprietary rights; (h) copies and tangible embodiments thereof (in whatever form or medium); and (i) together with the right to apply for the registration of any such rights and the right to defend and enforce such rights in all countries and territories worldwide and under any international conventions. For the avoidance of doubt, Intellectual Property includes without limitation means all improvements, modifications, enhancements, updates, translations, evolutions and derivative works (whether made by OpenClinica or made or suggested by Customer, its Affiliates, or their Authorized Users, contractors or agents), and all related Documentation and information, related to or arising from the Services or any Confidential Information of OpenClinica.
13. “OpenClinica Data” means: (i) all data provided by OpenClinica to Customer, its Affiliates, or their Authorized Users, and all data generated by OpenClinica, (ii) Usage Data, and (iii) Feedback.
14. “Order Form” means a written order for Services signed by OpenClinica and Customer or one of its Affiliates, which references this Agreement. Each Order Form entered into by the Parties, once executed, shall be automatically incorporated herein by this reference and shall constitute a part of this Agreement and will each be subject to the terms and conditions in this Agreement, although, in each case, the terms in an individual Order Form shall govern only Services described in that Order Form.
15. “Receiving Party” is a Party or its Affiliates that receives Confidential Information from the other Party.
16. “Renewal Term” is defined in Section 4.
17. “Services” are study participant recruiting services (known as OpenClinica Recruit, or BuildClinical) provided to Customer and its Affiliates by OpenClinica as set forth in an Order Form.
18. “Term” means the Initial Term and any Renewal Terms.
19. “Update” means new releases, versions, patches and other updates for the Services that OpenClinica makes generally available without additional charge to its customers.
20. “Usage Data” is defined in Section 5.
21. “Website” means the OpenClinica site located at openclinica.com, buildclinical.com, openclinica.io and other web services (including APIs) through which OpenClinica provides the Services under this Agreement.
Services.
1. Provision of Services. OpenClinica will provide Customer and its Affiliates with the Services set forth in the Order Form.
2. License to Services and Documentation. OpenClinica hereby grants to Customer, its Affiliates, and their Authorized Users a non-exclusive, non-transferable, non-sublicensable, fully paid -up, limited license to access and use the Services and Documentation during the Term. All rights not expressly granted to Customer in this Agreement are reserved by OpenClinica. Customer understands and agrees that OpenClinica may require Authorized Users to agree to the terms of User Documents in connection with use of the Services.
3. Carrier Lines. Customer, its Affiliates, and their Authorized Users will be responsible for obtaining internet connections, routers, switches, and other devices owned, maintained, and service by third-party carriers, utilities, or other services providers (“Carrier Lines”) that are necessary to access the Services and Documentation.
4. Access to Documentation. OpenClinica will provide Customer, its Affiliates and their Authorized Users via the Website or other means with access to the Documentation, as may be updated from time to time in order to reflect any Updates. Customer, its Affiliates, and their Authorized Users may print copies of and use the Documentation solely in connection with the use of the Services. Customer, its Affiliates, and their Authorized Users will not remove any copyright, trademark or other notices from any copies of the Documentation.
5. Subcontractors. Except as otherwise provided in writing between the Parties, OpenClinica may subcontract its obligations under this Agreement without Customer’s prior written approval. OpenClinica will remain responsible for its contractors’ performance to the same extent as if such obligations and Services were performed by OpenClinica.
Fees and Payment Terms
1. Fees and payment. Customer or its Affiliates will pay OpenClinica fees as set forth on an Order Form (the “Fees”) in accordance with the payment schedule set forth on the Order Form. Except as provided herein, payments of Fees are fully earned and non-refundable when and as the Services are performed. Separate Order Forms are required for each Customer Affiliate that wishes to use the Services.
2. Increase in Fees. During any Renewal Term of an Order Form, OpenClinica may increase the fees not more than once annually, upon written notice of a pricing change at least forty-five (45) calendar days in advance of the price increase. If Customer or Affiliate, as applicable to the particular Order Form, does not accept the pricing change, Customer or Affiliate may terminate the Order Form(s) to which the increase in fees applies, as of the effective date of the increased Fees.
3. Overdue payments. Overdue Fees will be assessed interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under Applicable Law, from due date until paid.
4. Taxes. Customer or Affiliate will pay any sales, use or other tax related to the Services provided hereunder, exclusive of taxes imposed on, or with respect to, OpenClinica’s income, revenues, gross receipts, personnel, property, payroll taxes relating to OpenClinica’s employees, or other assets, or similar taxes not directly based on Customer’s or Affiliate’s use or consumption of the Services. To the extent an invoice includes state and local taxes that may apply, Customer or Affiliate, as applicable to the particular Order Form, is responsible for paying such taxes. If the Customer is exempt from sales tax, please send the applicable tax exemption certificate to accounts-receivable@openclinica.com.
5. Suspension of Services Due to Non-Payment. If payment of Fees is overdue by 30 days or more, OpenClinica, at its sole discretion, may suspend Services to Customer or an Affiliate, as applicable to the particular Order Form. OpenClinica may require Customer or its Affiliate to pay a reactivation fee in order to restore the Services.
6. Collection. Customer is responsible for costs of collection, including attorney’s fees.
Term and Termination.
1. Agreement
  1. Initial Term. The initial term of this Agreement begins on the Effective Date and will continue for the period specified in the Order Form, unless and until terminated in accordance with section 4.1.3 (the “Initial Term”).
  2. Renewal Terms. Upon expiration of the Initial Term, this Agreement and the Order Form will automatically renew for successive one-month periods (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least one month prior to the expiration of the then-current term.
  3. Termination. Either Party may terminate this Agreement and Order Form after the minimum term specified on the Order Form, for any reason by providing 30 days advance written notice.
  4. Effect of Termination. Upon expiration or termination of this Agreement, all rights and licenses granted hereunder to Customer (as well as all rights granted to any Affiliates or Authorized Users of Customer or any Affiliates) will immediately cease, including but not limited to all use of the Services and the Documentation.
  5. Survival. The provisions within the following sections will survive any termination or expiration of this Agreement: Section 1 (Definitions), Section 3 (Fees and Payment Terms), Section 4 (Term and Termination), Section 5 (Intellectual Property, Data Ownership and Licenses), Section 6 (Confidentiality) Section 7 (Representations and Warranties, Disclaimer), Section 8 (Limitation of Liability), Section 9 (Indemnification), and Section 10 (Miscellaneous Provisions).
Intellectual Property, Data Ownership and Licenses.
1. OpenClinica Data and Services. OpenClinica or its Affiliates own OpenClinica Data and own the Services and the Documentation, including any Intellectual Property rights relating thereto. OpenClinica hereby grants to Customer, its Affiliates, and their Authorized Users a non-exclusive, royalty-free, fully paid-up, license to use the OpenClinica Data as needed to utilize Services and to perform Customer’s own research. Customer will have no rights with respect to the OpenClinica Data, Services or Documentation other than those expressly granted under this Agreement.
2. Customer Data. As between Customer and OpenClinica, Customer owns all Customer Data or has the legal right and authority to provide Customer Data to OpenClinica in connection with this Agreement. Customer hereby grants OpenClinica and its Affiliates a non-exclusive, royalty-free, fully paid-up worldwide license (with the right to sublicense) to access, use, copy, store, process, or transmit or disclose Customer Data for the following purposes: (i) to provide the Services to Customer and its Affiliates, (ii) for evaluating, auditing, improving and developing the Services, (iii) to create de-identified data in accordance with the HIPAA regulations at 45 C.F.R. § 164.514(b), or in accordance with other de-identification or anonymization standards that are applicable to a Customer and communicated in writing to OpenClinica, and (iv) as otherwise set forth in an Order Form or as otherwise permitted by Customer in writing. Customer also hereby grants to OpenClinica and its Affiliates a non-exclusive, royalty-free, fully-paid up, perpetual license (with the right to sublicense) to access, use, copy, store, process, or transmit or disclose de-identified data created in accordance with this Section: (i) to provide and improve Services to Customer and other customers of OpenClinica, and (ii) to develop, provide and improve new services. This Section does not give OpenClinica and its Affiliates the right to sell Customer Data or de-identified data derived from Customer Data.
3. Usage Data. OpenClinica or its Affiliates collect data pertaining to Customer’s, its Affiliates’, and their Authorized Users’ use of Services including but not limited to, information pertaining to the number and status of Customer Studies, sites, study definitions, and data related to system usage patterns and user load (“Usage Data”). OpenClinica owns Usage Data.
4. Feedback. Customer, its Affiliates, or their Authorized Users may from time to time provide suggestions, requests for enhancements or functionality, or other feedback regarding the Services (collectively, “Feedback“). OpenClinica shall have full discretion over whether or not to utilize any Feedback, including whether to use such Feedback to make upgrades to the Services. OpenClinica owns Feedback.
Confidentiality
1. Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any non-public information or material regarding either Party’s or their Affiliates’ legal or business affairs, financing, technology, methodologies, personally identifiable information, hosting/network infrastructure, customers, properties or data, and anything reasonably understood to be confidential. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (ii) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third party who is not under any confidentiality obligations with regard to the information.
2. Use and Disclosure of Confidential Information. With respect to any Confidential Information disclosed by the Disclosing Party, the Receiving Party: (i) shall use such Confidential Information only in connection with the Receiving Party’s performance pursuant to this Agreement or as permitted by this Agreement or an Order Form; (ii) subject to the “Employee and Agent Compliance” section below, shall restrict disclosure to only those of the Receiving Party’s employees and agents who have a need to know such Confidential Information in connection with this Agreement, and (iii) shall not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so or unless the Agreement or an Order Form permits such disclosure.
3. Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the same degree of care that it uses to protect its own Confidential Information (but no less than a reasonable degree of care).
4. Required Disclosures. If the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information pursuant to Applicable Laws, any judicial or governmental order, or other bona fide legal process, the Receiving Party will not disclose the Confidential Information without first giving the Disclosing Party written notice of the request and sufficient opportunity to contest the law, order, or process, to the extent such notice and opportunity to contest may be lawfully given, and will only disclose as much information as necessary to comply with the law, order, or process.
5. Injunctive Relief. In the event of a breach of the confidentiality obligations set forth in this Agreement, the Parties acknowledge that such breach may cause irreparable harm for which remedies at law would be inadequate, and therefore, the Parties agree that such breach will entitle the non-breaching Party to seek injunctive relief.
Representations and Warranties; Disclaimer.
1. Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder; (ii) it will comply with all Applicable Laws in the performance of its obligations under this Agreement; (iii) it is not an entity currently excluded, debarred or otherwise ineligible to participate in federal health care programs as defined in 42 U.S.C. § 1320a-7b(f) (the “Federal Health Care Programs”). Each Party agrees to immediately notify the other Party of any change to its eligibility to participate in Federal Health Care Programs, and the other Party has the right to immediately terminate this Agreement in the event of such exclusion, debarment or ineligibility.
2. Representations and Warranties of OpenClinica. OpenClinica represents and warrants that: (i) the Services will not infringe any intellectual property right or proprietary right of any third party; (ii) the Services will employ commercially reasonable efforts to ensure that the Services will not contain any malicious code (such as computer virus, Trojan horse, worm, time bomb, or other similar code designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology); (iii) the Services will operate substantially in compliance with the Documentation; (iv) the Services will be performed in a professional and workmanlike manner; and (v) OpenClinica and its Affiliates have full capacity and all necessary licenses, permits, and consents to provide the Services.
3. DISCLAIMERS. OpenClinica cannot guarantee that every error in the Services or problem raised by Customer will be resolved. THE SERVICES, ANY UPDATES TO SERVICES, THE DOCUMENTATION, AND ANY OTHER MATERIALS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND OPENCLINICA AND ITS AFFILIATES DO NOT MAKE ANY WARRANTY IN CONNECTION WITH THE SERVICES AND HEREBY DISCLAIM ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION, DATA ACCURACY, SYSTEM INTEGRATION OR INTEROPERABILITY, NONINTERFERENCE, QUALITY, VALUE, OPERABILITY OR CONDITION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. OPENCLINICA WILL NOT BE RESPONSIBLE FOR ANY ERRORS OR DEFECTS IN THE SERVICE CAUSED BY THIRD PARTY MATERIALS OR THIRD PARTY ACTS OR OMISSIONS. To the extent a Party may not as a matter of Applicable Law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
Limitation of Liability.
1. Exclusion and Damages. NEITHER PARTY NOR THEIR AFFILIATES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOST REVENUE, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY AND ITS OFFICERS, DIRECTORS, AND EMPLOYEES FOR ANY CLAIMS OR CAUSES OF ACTION ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO OPENCLINICA BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES. THIS LIMITATION OF LIABILITY APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT OR BREACH OF WARRANTY, OR NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ALL OTHER TORTS AND ALL STATUTORY CAUSES OF ACTION.
2. Exceptions. NOTWITHSTANDING THE FOREGOING LIMITATIONS, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THE SECTION TITLED “LIMITATION OF LIABILITY” SHALL NOT APPLY TO DAMAGES ARISING FROM: (I) BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER; (ii) THE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR (III) OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Indemnification.
1. Indemnification by OpenClinica. OpenClinica will defend, indemnify and hold harmless Customer, its Affiliates, their Authorized Users, and each of their officers, directors, managers, shareholders, members, and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third-party claim (i) that the use of the Services in accordance with this Agreement infringes or misappropriates intellectual property or proprietary rights of any third party; or (ii) arising out of OpenClinica’s violation of Applicable Law; provided, however, that the foregoing obligations shall be subject to Customer (a) promptly notifying OpenClinica of the claim, (b) providing OpenClinica with reasonable cooperation in the defense of the claim when Customer becomes aware and (c) providing OpenClinica with sole control over the defense and negotiations for a settlement or compromise; provided OpenClinica obtains Customer’s prior written consent to any settlement, such consent not to be unreasonably withheld and that Customer may participate in the defense at its own cost.
  Notwithstanding the foregoing, OpenClinica shall have no obligation with respect to a third-party claim to the extent the third-party claim arises from: (x) use of the Services in combination with modules, apparatus, hardware, software, or services not developed or authorized by OpenClinica or contemplated for use with the Services; (y) use of the Services in a manner that is not in accordance with this Agreement or the Documentation; or (z) the alteration or modification of the Services by a party other than OpenClinica, unless such alterations and modifications were authorized by OpenClinica and contemplated for use with the Services.The foregoing indemnification obligations do not apply to the extent failures or losses were caused solely by third-party software applications or web-based services used in connection with the Services. This Section states Customer’s sole and exclusive remedy and OpenClinica’s sole and exclusive liability regarding infringement of any third-party intellectual property or proprietary rights by the Services.
2. Indemnification by Customer. Customer will defend, indemnify and hold harmless OpenClinica and its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third-party claim: (i) that any Customer Data provided by Customer, its Affiliates or their Authorized Users infringes or misappropriates any intellectual property or proprietary rights of a third party or where Customer, one of its Affiliates or their Authorized Users did not have all necessary licenses, permits, and consents and all necessary contractual authority to provide Customer Data to OpenClinica; (ii) arising out of Customer’s violation of Applicable Law, or (iii) any use of the Services in breach of the Agreement.
3. Comparative Fault. Where both Parties, including their respective Affiliates or Authorized Users, participated in the liability causing event, each Party will contribute to the common liability a pro rata share based upon its relative degree of fault.
Miscellaneous Provisions.
1. Compliance with Applicable Law. Each Party will comply with all Applicable Law.
2. Communication Policy. For purposes of providing Services, Customer agrees and authorizes OpenClinica to send to Customer, its Affiliates, and their Authorized Users any notifications, reminders, and other communications by email, text message, fax, phone, or other method of communication, at the phone numbers or address provided to OpenClinica, including any residential and cell phone (wireless) numbers or fax machines. Customer further acknowledges and agrees that Customer, its Affiliates and their Authorized Users are responsible for their own compliance with all Applicable Law, including (but not limited to) the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM).
3. Insurance. OpenClinica will maintain at all times during the Term of this Agreement commercial general liability insurance of not less than $1,000,000 per occurrence and in aggregate, cyber security liability insurance of not less than $5,000,000 per occurrence and in aggregate, and worker’s compensation insurance at or greater than the minimum levels required by Applicable Law.
4. Notices. Unless otherwise specified herein, all notices and other communications between the Parties required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by (i) personal service, (ii) electronic mail, (iii) registered or certified mail, postage prepaid, return receipt requested, or (iv) nationally recognized private courier service with recipient signature, to the respective addresses of the Parties set forth below or such other addresses as the respective Parties may designate by like notice from time to time. Notices so given will be effective upon (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first:
  1. If to OpenClinica: OpenClinica LLC, 163 Highland Ave. #1173, Needham MA 02494, USA, Attn: General Counsel. Email: legal@openclinica.com
  2. If to Customer: Address on order form. Email: System administration user or other designated contact.
5. Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties or constitute either Party the agent of the other.
6. Assignment. Neither Party may assign this Agreement without the prior, written consent of the other Party; provided, however, that either Party may, upon prior, written notice to the other Party and without the consent of the other Party, assign this Agreement in connection with a merger, corporate reorganization or sale of all of its assets. Any assignment in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
7. Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, hurricanes, other natural disasters, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
8. Choice of Law and Exclusive Forum. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law. Each Party hereby consents to jurisdiction of courts in Middlesex County, Massachusetts, and waives any objections to such jurisdiction. In any action or proceeding arising out of this Agreement, the Party prevailing in such action shall be entitled to recover its reasonable attorneys’ fees and costs. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or the United Nations Convention on the Limitation Period in the International Sale of Goods, or the Uniform Computer Information Transactions Act, the application of which are expressly excluded.
9. Modification. OpenClinica may modify this Agreement at any time with notice to Customer, which notice will include an effective date of the modifications to the Agreement that are at least 30 days after the notice to Customer. Continued use of the Services after the effective date of the modifications to this Agreement constitutes acceptance of the updated terms.
10. No Waiver. The rights and remedies of the Parties to this Agreement are cumulative, not alternative, and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, in any other agreement between the Parties or otherwise. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
12. Entire Agreement. This Agreement (including all Order Forms) contains the entire understanding of the Parties with respect to the subject matter hereof. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement.
13. Execution in Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email), each of which will be deemed an original, but all of which together will constitute the same Agreement.