THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU (THE ENTITY OR INDIVIDUAL AGREEING TO THESE TERMS, “CLIENT”) AND LABKEY CORPORATION (“LABKEY”) FOR A LICENSE TO THE LABKEY COMMUNITY EDITION SOFTWARE (THE “LABKEY SOFTWARE”) DESCRIBED BELOW. YOU MUST AGREE TO THESE TERMS AND CONDITIONS IN ORDER TO ACCESS THE LABKEY SOFTWARE. BY CLICKING ON THE “I AGREE” BUTTON OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF AN ELECTRONIC COPY OF THIS AGREEMENT, YOU ARE AGREEING: (1) THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT; (2) TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT; (3) THAT YOU ARE DULY AUTHORIZED TO BIND YOUR COMPANY LEGALLY TO THIS AGREEMENT; AND (4) THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY TERMS CONTAINED IN ANY CLIENT PURCHASE ORDER. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
1. Engagement Overview
LabKey will provide hosting services for the LabKey Software on a dedicated server in a cloud-based environment. LabKey will be responsible for all server maintenance, upgrades, monitoring and backup. LabKey’s hosting services effort includes the following:
- A virtual application server dedicated exclusively to Client’s needs – which includes the following managed services and features:
- System administration
- Regular systems patching of operating system and LabKey application dependencies
- Regular coordinated updates to the latest LabKey application release during standard maintenance or client specified outage windows
- Daily backups of client data with 35 days of backup retention
- Site-level administration rights, including the ability to customize server domain, site name, and other settings
- Unlimited numbers of securable sub-folders and user accounts
- 32 GB of storage for files
- A virtual database server dedicated exclusively for Client’s LabKey instance which includes the following managed services and features:
- Regular systems patching
- Daily backups of client data with 35 days of backup retention
- Database administration
- 32 GB of storage for database
- Next business day support and recovery (9am-5pm, Monday-Friday) with best-effort after-hours support
- LabKey Software will back up this system at regular intervals, but will not provide a “hot” standby system, meaning continuous uptime is not guaranteed
- LabKey Software reserves the right to re-negotiate terms in cases of high usage
- This starter-level offering is not HIPAA, FISMA or 21 CFR Part 11 compliant
2. Intellectual Property
2.1. Proprietary Rights. Except as expressly set forth in this Agreement, Client does not acquire any rights in or license to any component of the LabKey Software or the hosted service or any LabKey intellectual property rights.
2.2. Software License. Subject to the terms and conditions of this Agreement, LabKey grants to Client a non-exclusive, non-transferable (except in connection with a permitted assignment under Section 10), non-sublicensable license to use the LabKey Software under terms of the Apache Software License Version 2.0 set forth at the end of these Terms and at http://www.apache.org/licenses/LICENSE-2.0. LabKey does not provide any development support or technical support for the LabKey Software.
2.3. Third-Party Works and Open Source. LabKey may incorporate works owned by other parties into the LabKey Software. LabKey will denote these clearly and will provide you with references to the licenses that govern their use; provided, however, that if LabKey does not provide you with such license references, the terms of this Agreement shall govern your use of the LabKey Software. To the extent the LabKey Software includes software that is subject to open source licenses (“Open Source Software”), such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software.
2.4. No Reverse Engineering, Distribution or Publishing. Client and each Client user is prohibited from (a) reverse engineering, decompiling, disassembling, copying or cloning any part of any LabKey Software; or (b) licensing, sublicensing, renting, leasing, loaning, giving, permitting use of, selling, allowing foreclosure of, publishing, distributing or otherwise transferring (by electronic or any other means) any part of any LabKey software (except the Community Edition, per the terms of the Apache license) to any person or entity for any purpose.
3. Fees and Billing
3.1. Terms. Payment for the hosted service and license to the LabKey Software is due at the start of each subscription period.
3.2. Invoices and Payments. Client will pay all fees via credit card or by other payment type specified in the applicable Order Form. If Client is making payments of fees via credit card, it agrees to provide accurate payment information, and hereby authorize LabKey to charge such credit card for all fees set forth in an applicable Order Form for the subscription term (and any renewal thereof) . Payments past due shall accrue 1% interest per month until the invoice and interest are paid in full.
3.3. Taxes. Unless otherwise provided therein, price quotes are exclusive of taxes and third-party expenses. Client shall pay all taxes and third-party expenses imposed on, in connection with, or measured by any transaction contemplated by this Agreement.
4.1. Confidential Information. Each party (“Disclosing Party”) may disclose to the other (“Receiving Party”) non-public information that Disclosing Party designates as being confidential, or that, based on the nature of the information or circumstances surrounding its disclosure, ought to be treated as confidential (“Confidential Information”). Confidential Information may include, but is not limited to, software designs, inventions and improvements; marketing plans; advertising plans; works of authorship; business plans; pricing information; trade secrets; or similar materials.
4.2. Non-Disclosure. Receiving Party will use Confidential Information only for the purposes of the implementation of this Agreement and the Appendices and not for any other purpose. Receiving Party will not disclose Confidential Information to any third party or reverse engineer, disassemble or de-compile any prototypes, software or other tangible objects that embody Disclosing Party’s Confidential Information unless written consent for such actions is received from Disclosing Party, without the prior written consent of Disclosing Party.
4.3. Information Not Considered Confidential. “Confidential Information” will not include information that: (x) was known to Receiving Party before Disclosing Party disclosed it or is publicly available without Receiving Party’s fault, (y) Receiving Party developed independently without use of or reference to Disclosing Party’s Confidential Information; or (z) was rightfully obtained from a third party without breaching any confidentiality obligation to Disclosing Party. In addition, Receiving Party may disclose Disclosing Party’s Confidential Information as required by applicable law, but Receiving Party will give Disclosing Party advance notice that is reasonably sufficient to allow Disclosing Party to seek to limit or prevent such disclosure.
4.4. Irreparable Injury. Receiving Party acknowledges that disclosure of Disclosing Party’s Confidential Information may give rise to irreparable injury to Disclosing Party, inadequately compensable in damages. Accordingly, Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of this Agreement, in addition to any other legal remedies that may be available. Each party further acknowledges and agrees that the provisions in this Agreement are necessary for the protection of the parties’ legitimate business interests and are reasonable in scope and content.
5. Term and Termination; Survivability
This Agreement’s term begins on the Effective Date set forth in the corresponding Order Form and shall continue for a period of one year. This Agreement shall automatically renew for successive one-year terms unless either party gives notice at least 30 days prior to the end of a one-year period of its intention not to renew this Agreement. Either party may terminate this Agreement in the event of a material breach of its terms by the other party where such breach is not cured within 30 days of written notice thereof. Sections 2, 3, 4, 5, 7, 8, and 9 of this Agreement survive its termination or expiration.
6. Warranty Disclaimer
LabKey warrants to Client (a) that its services hereunder shall be performed in a workmanlike and professional manner consistent with prevailing industry standards for such services; (b) that it owns or controls the LabKey Software and has the right to provide the LabKey Software to Client under the terms of this Agreement; and (c) that it has not received notice of possible infringement of a third party’s intellectual property rights with respect to the LabKey Software. EXCEPT FOR THE FOREGOING WARRANTY, LABKEY PROVIDES ALL LABKEY SOFTWARE AND SERVICES ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. LABKEY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOU ASSUME ANY AND ALL RISKS ARISING FROM YOUR USING THE LABKEY SOFTWARE.
7. Limitations on Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE LABKEY SOFTWARE, UNDER WHATEVER LEGAL OR EQUITABLE THEORY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT WILL EITHER PARTY’S MAXIMUM TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY LABKEY FROM YOU UNDER THIS AGREEMENT IN THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. HOWEVER, THIS SECTION 7 WILL NOT APPLY TO CASES OF FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
8. Compliance with Laws; Governing Law; Venue
Each party shall comply with all laws applicable to its actions pursuant to this Agreement, including but not limited to applicable export control laws. The LabKey Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the LabKey Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement. This Agreement is governed by the laws of the State of Washington, excluding its conflict of laws provisions. Any dispute arising under, in connection with, or incident to this Agreement or concerning its interpretation will be resolved exclusively in the state or federal courts located in King County, Washington, and each of the parties hereby irrevocably consents to such jurisdiction.
9. Attorneys’ Fees
In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees.
You may not assign this Agreement without LabKey’s express written consent, which will not be unreasonably withheld.
This Agreement may be amended only in a writing signed by both parties.