Effective August 5, 2022
Please read this Terms of Service Agreement (“Agreement”) carefully. By clicking, “I Accept,” completing the registration process, or accessing or using the websites provided by Kiipo Co. (d/b/a Labfront), or its subsidiaries or affiliates (herein referred to as “Labfront,” “we,” “us” or “our”), including without limitation, https://labfront.com, https://kiipo.com, https://physioq.org (collectively, the “Websites”) pursuant to which we offer our proprietary data analytics platform, mobile application (“Application”) and other services and resources (each a “Service” and collectively, the “Services”), you as an individual research participant (“Participant”) or as a researcher and the research entity you represent (“Researcher”) (collectively, “you” or “your”) agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated by reference. You further represent and warrant that (1) you are of legal age to form a binding contract with Labfront, and (2) you have the authority to enter into the Agreement personally or on behalf of the entity you represent, and you have the requisite power and authority to bind such entity. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
Labfront creates tools that enable Researchers to capture data remotely and analyze such data. THE SERVICES ARE NOT DESIGNED, INTENDED, AUTHORIZED OR WARRANTED TO BE SUITABLE FOR USE IN PRIMARY HEALTH MONITORING, LIFE SUPPORT APPLICATIONS, DEVICES OR SYSTEMS, OR ANY ENHANCED 911 OR E911 CALLING SYSTEMS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, DIAL 911.
Labfront reserves the right, at our sole discretion, to change or modify portions of this Agreement at any time. When changes are made, Labfront will update the “Last Updated” date at the top of the Terms of Service Agreement, in the footer of the Website or in the App. If we make any material changes, we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. You should print a copy of these terms or save them to your computer for future reference.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: PLEASE BE AWARE THAT SECTION 11 (DISPUTE RESOLUTION) CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 1.4 (LABFRONT COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.”
- USE OF THE SERVICES AND LABFRONT PROPERTIES. The Websites, Application, Services, and the information and content available on the Services (as these terms are defined herein) (each, a “Labfront Property” and collectively, the “Labfront Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Labfront grants you a limited license to reproduce portions of Labfront Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Labfront in a separate license, your right to use any and all Labfront Properties is subject to the Agreement.
1.1. Application License. Subject to your compliance with the Agreement, Labfront grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
1.2 Updates. You understand that Labfront Properties are evolving. As a result, Labfront may require you to accept updates to Labfront Properties that you have installed on your computer or mobile device. You acknowledge and agree that Labfront may update Labfront Properties with or without notifying you. You may need to update third-party software from time to time in order to use Labfront Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Labfront Properties or any portion of Labfront Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Labfront Properties (including images, text, page layout or form) of Labfront; (c) you shall not use any metatags or other “hidden text” using Labfront’s name or trademarks;(d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Labfront Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Labfront Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Labfront Properties. Any future release, update or other addition to Labfront Properties shall be subject to the Agreement. Labfront, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Labfront Property terminates the licenses granted by Labfront pursuant to the Agreement.
1.4 Labfront Communications. By entering into this Agreement or using the Labfront Properties, you agree to receive communications from us, including via e-mail and push notifications. Communications from us and our affiliated companies may include but are not limited to operational communications concerning your Account or the use of the Labfront Properties, updates concerning new and existing features on the Labfront Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Labfront and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2.1 Registering Your Account. In order to access certain features of Labfront Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Labfront Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (y) notify Labfront immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Labfront has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Labfront has the right to suspend or terminate your Account and refuse any and all current or future use of Labfront Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself (other than your agents who need access to the Labfront Properties solely for your benefit). Labfront reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Labfront Properties if you have been previously removed by Labfront, or if you have been previously banned from any of Labfront Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Labfront.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Labfront Properties, including but not limited to, a device that is suitable to connect with and use Labfront Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Labfront Properties.
2.5 Necessary Consents. If you are a researcher, you are solely responsible for obtaining all necessary consents and authorizations and providing all notices required in connection with any study, research, experiment or other project that you conduct through or otherwise with the use of the Labfront Properties, including, without limitation, any parental/guardian consents, patient waivers and data rights.
3.1 Labfront Properties. You agree that Labfront and its suppliers own all rights, title and interest in Labfront Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Labfront Properties.
3.2 Trademarks. “Labfront,” “Labfront” and all related graphics, logos, service marks and trade names used on or in connection with any Labfront Properties or in connection with the Services are the trademarks of Labfront and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in Labfront Properties are the property of their respective owners.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Labfront through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Labfront has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Labfront a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Labfront Properties and/or Labfront’s business.
- USER CONDUCT. As a condition of use, you agree not to use Labfront Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Labfront’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Labfront; (vi) interferes with or attempt to interfere with the proper functioning of Labfront Properties or uses Labfront Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Labfront Properties, including but not limited to violating or attempting to violate any security features of Labfront Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Labfront Properties, introducing viruses, worms, or similar harmful code into Labfront Properties, or interfering or attempting to interfere with use of Labfront Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Labfront Properties.
- FEES AND PURCHASE TERMS.
5.1 General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose.
5.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Labfront with a valid credit card (Visa, MasterCard, or any other issuer accepted by us), or purchase order information. By providing Labfront with your credit card number and associated payment information, you agree that Labfront or our third-party payment processor is authorized to immediately invoice your Account for all fees and charges due and payable to Labfront hereunder and that no additional notice or consent is required. You agree to immediately notify Labfront of any change in your billing address or the credit card used for payment hereunder. Labfront reserves the right at any time to change its prices and billing methods, either immediately upon posting on Labfront Properties or by e-mail delivery to you.
5.3 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Labfront for the Services until Labfront accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
5.4 Taxes. The payments required under Section 5.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Labfront determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Labfront shall collect such Sales Tax in addition to the payments required under Section 5.3(Service Subscription Fees) of this Agreement. If any services , or payments for any services , under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Labfront, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Labfront for any liability or expense Labfront may incur in connection with such Sales Taxes. Upon Labfront’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You agree to make all payments of fees to Labfront free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Labfront will be your sole responsibility, and you will provide Labfront with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
5.5 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Labfront’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Labfront that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Labfront notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Labfront at 617-221-6192 and/or firstname.lastname@example.org or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Labfront to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Labfront does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Labfront may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
5.6 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire, and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Labfront to have the charges reversed.
- INDEMNIFICATION. You agree to indemnify and hold Labfront, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Labfront Party” and collectively, the “Labfront Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Labfront Property; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any Registered Users; or (d) your violation of any applicable laws, rules or regulations. Labfront reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Labfront in asserting any available defenses. This provision does not require you to indemnify any of the Labfront Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Labfront Properties.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
7.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF LABFRONT PROPERTIES IS AT YOUR SOLE RISK, AND LABFRONT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. LABFRONT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
- LABFRONT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) LABFRONT PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF LABFRONT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF LABFRONT PROPERTIES WILL BE ACCURATE OR RELIABLE.
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH LABFRONT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE. FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS LABFRONT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. LABFRONT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LABFRONT OR THROUGH LABFRONT PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- LIMITATION OF LIABILITY
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL LABFRONT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT LABFRONT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF LABFRONT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE LABFRONT PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH LABFRONT PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON LABFRONT PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO LABFRONT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. LABFRONT DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY LABFRONT’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
8.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, LABFRONT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO Labfront by you during the TWELVE-month period prior to the act, omission or occurrence giving rise to such liability; (b) $100; or (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A LABFRONT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A LABFRONT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A LABFRONT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LABFRONT AND YOU.
- TERM AND TERMINATION.
9.1. Term. The Agreement commences on the date when you click, “I Accept,” complete the registration process, or access or use the Services, and this Agreement remains in full force and effect while you use Labfront Properties, unless terminated earlier in accordance with the Agreement.
9.2 Termination of Services by Labfront. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Labfront is required to do so by law (e.g., where the provision of the Website, the Application or the Services is, or becomes, unlawful), Labfront has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Labfront’s sole discretion and that Labfront shall not be liable to you or any third party for any termination of your Account.
9.3 Termination of Services by You. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Labfront will refund your Service Subscription Fee, if already paid pursuant to Section 5.2 (Payment) or 5.3 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If you want to terminate the Services provided by Labfront, you may do so by (a) notifying Labfront at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Labfront’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 5.5 (AUTOMATIC RENEWAL).
9.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and data associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. Labfront will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
9.5 No Subsequent Registration. If your registration(s) with, or ability to access, Labfront Properties or any other Labfront community, is discontinued by Labfront due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Labfront Properties or any Labfront community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Labfront Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Labfront reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- INTERNATIONAL USERS. Labfront Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Labfront intends to announce such Services or Content in your country. Labfront Properties are controlled and offered by Labfront from its facilities in the United States of America. Labfront makes no representations that Labfront Properties are appropriate or available for use in other locations. Those who access or use Labfront Properties from other countries do so at their own volition and are responsible for compliance with local law.
- DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires U.S. consumer end users to arbitrate disputes with Labfront and limits the manner in which you can seek relief from us.
11.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Labfront, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or Labfront may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
11.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to Kiipo, 40 Spring Ln, Sharon, MA, 02067, USA. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If you are a Participant and the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Labfront will pay them for you. In addition, if you are a Participant, Labfront will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
11.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Labfront. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
11.4 Waiver of Jury Trial. YOU AND LABFRONT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Labfront are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the Commonwealth of Massachusetts. All other disputes, claims, or requests for relief shall be arbitrated.
11.6 Participant’s 30-Day Right to Opt Out. If you are a Participant, you have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Labfront username (if any), the email address you used to set up your Labfront account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. For clarity, this Section 11.6 shall not apply if you are a Researcher.
11.7 Severability. Except as provided in Section 11.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
11.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Labfront.
11.9 Modification. Notwithstanding any provision in this Agreement to the contrary, if you are a Participant, we agree that if Labfront makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Labfront at the following address: Kiipo, 40 Spring Ln, Sharon, MA, 02067, USA. For clarity, this Section 11.9 shall not apply if you are a Researcher.
- THIRD-PARTY SERVICES.
12.1. Third-Party Websites, Applications.
Labfront Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Labfront Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Labfront. Labfront is not responsible for any Third-Party Websites or Third-Party Applications. Labfront provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
12.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Labfront and not with the App Store. Labfront, not the App Store, is solely responsible for Labfront Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Labfront Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Labfront Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
- GENERAL PROVISIONS.
13.1 Electronic Communications. The communications between you and Labfront may take place via electronic means, whether you visit Labfront Properties or send Labfront e-mails, or whether Labfront posts notices on Labfront Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Labfront in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Labfront provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
13.2 Release. You hereby release Labfront Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is directly or indirectly related to or arises from your relationship with other users of the Labfront Properties or Researchers that procured your access to the Labfront Properties interactions with or conduct of other. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Labfront Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
13.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Labfront’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.4 Force Majeure. Labfront shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Labfront Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Labfront agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Boston, Massachusetts.
13.7. Governing Law and Jurisdiction. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. EACH PARTY IRREVOCABLY AGREES THAT THE STATE AND FEDERAL COURTS OF THE STATE OF MASSACHUSETTS SHALL HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER OR FORMATION (INCLUDING NON-CONTRACTUAL DISPUTES OR CLAIMS).
13.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
13.9 Notice. Where Labfront requires that you provide an e-mail address, you are responsible for providing Labfront with your most current e-mail address. In the event that the last e-mail address you provided to Labfront is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Labfront’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Labfront at the following address: 40 Spring Ln, Sharon, MA, 02067, USA. Such notice shall be deemed given when received by Labfront by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.10 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
13.12 Export Control. You may not use, export, import, or transfer Labfront Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Labfront Properties, and any other applicable laws. In particular, but without limitation, Labfront Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Labfront Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Labfront Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Labfront are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Labfront products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.13 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
13.14 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
- INTERNATIONAL PROVISIONS. The following provisions shall apply only if you are located in the countries listed below.
14.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
14.2 Germany. Notwithstanding anything to the contrary in Section 8 (Limitation of Liability), Labfront is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).