LABBY TERMS OF SERVICE
Last updated: June 11, 2021
Labby, Inc. (“Labby,” “we,” “our,” or “us”) makes its cloud-based platform (MilKey by Labby®), related mobile applications and web-based services, and all versions, updates, corrections, enhancements, and modifications thereof (collectively, the “Services”) available to you (“Customer” or “you” or “your”) for your use subject to the terms and conditions in this Terms of Service Agreement (the “Terms” or “Agreement”). The terms and conditions in this Agreement are of general application, and may be supplemented from time-to-time by additional policies, disclaimers, guidelines, or conditions of specific application that we disclose.
1. SERVICES.
1.1. Overview. Labby offers its Services and its inline sensing, handheld milk analyzer, and other products (collectively, “Products”) to efficiently analyze milk samples (“Samples”) in order to improve the usability, access, and ease with which dairy producers can manage dairy herd mastitis and improve bulk tank milk pay. Labby’s Products and Services are offered for purchase and access through a purchase order executed by Customer and Labby or Labby’s authorized reseller that specifies the Products and Services to be provided to Customer (“Purchase Order”). If you purchase a Product directly from Labby, the terms of Exhibit 1 apply to the Product. Additional or varying terms may apply if you Purchase a Product from a Labby authorized reseller.
1.2. Authorization. Subject to all of the terms and conditions of this Agreement, including payment of applicable Fees, Labby hereby authorizes Customer, on a non-exclusive, non-transferable, revocable, and limited basis, the right to access and use the Services solely for Customer’s internal business operations, and only in accordance with (i) this Agreement (including its exhibits), (ii) any Documentation, and (iii) any limitations set forth on the applicable Purchase Order. Customer may authorize its Affiliates and employees, agents and contractors (each, an “Authorized User”) to access and use the Services, subject to the terms and conditions of this Agreement; provided, Customer shall be and remain solely liable for all acts and omissions of its Authorized Users and Affiliates. As used herein, “Affiliates” means all entities that (directly or indirectly) control, are controlled by or are under common control with that party, where “control” means ownership of or the right to control greater than 50% of the voting interests of such entity.
1.3. Authorized Users. Unless otherwise agreed upon in a Purchase Order, each Customer may authorize up to five (5) Authorized Users. If Customer desires to authorize more than five (5) Authorized Users, additional charges and fees may apply. Customer shall will ensure that its Authorized Users comply with the terms of this Agreement. Customer is solely responsible for identifying and authenticating all Authorized Users, approving access by such Authorized Users to the Services, controlling against unauthorized access by Authorized Users or third parties, and maintaining the confidentiality of usernames, passwords and account information. Customer is responsible for all activities that occur under it and its Authorized Users’ usernames, passwords or accounts or as a result of it or its Authorized Users’ access to the Services. Customer will prevent any unauthorized access to, or use of, the Services and/or the Documentation. Customer will immediately notify Labby in writing of any unauthorized use of the Services that it is made aware of. In the event of any such unauthorized use by any third party that obtained access to the Services directly or indirectly through Customer or any of Customer’s Authorized Users, Customer will take all steps necessary to terminate such unauthorized access and use and will provide Labby with full cooperation and assistance as requested by Labby related to such unauthorized access and use. Labby is not responsible for any harm caused by Customer’s Authorized Users, including individuals who were not authorized to have access to the Services, but who were able to gain access because usernames, passwords or accounts were not kept confidential or properly managed by Customer or its Authorized Users.
1.4. Documentation. Labby will make any document(s) or other materials that describes the Product and Services, including all user instructions and technical specifications related thereto (“Documentation”) available to Customer, and Customer will use the Documentation solely for its internal business purposes. Customer may, and may authorize its Affiliates to, print, copy and internally distribute the Documentation to Authorized Users solely on a need to know basis; provided that Customer and its Affiliates replicate all copyright and other proprietary rights notices contained in the original copy of the Documentation. The Documentation and any copies made hereunder are the property and Confidential Information of Labby. Customer shall be responsible for unauthorized use or disclosure of the Documentation by its Authorized Users, or third parties who were not authorized to have access to the Documentation, but who were able to gain access through Customer or its Authorized Users.
1.5. Account. Customer, or its Authorized Users, will be required to create an account to use certain Services using certain identifiers such as an email address, name, and/or password. Customer may have the opportunity to provide additional information to Labby as part of the account creation process (i.e. Customer Data, defined below). Customer shall provide, and shall ensure its Authorized Users provide, Labby with accurate, complete, and updated registration information. Customer and its Authorized Users are solely responsible for maintaining the confidentiality of any account it or they create, including but not limited to account passwords. Any failure to comply with this provision may result in immediate termination of the account. Labby reserves the right to refuse registration of, or cancel an account in its sole discretion.
1.6. Modification. We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
1.7. Removal of Access. Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (i) breach or violation of this Agreement or other incorporated agreements or guidelines; (ii) discontinuance or material modification to the Services; (iii) unexpected technical or security issues or problems; (iv) extended periods of inactivity; or (v) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
1.8. Defects and Availability. We use commercially reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any part thereof, or any damages (such as consequential or indirect damages) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which we may undertake from time to time; or (iii) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the Internet, so the quality and availability of the Services may be affected by factors outside of our control. The Services are not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Services. We do not represent, warrant, or guarantee that the Services will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
1.9. Communications. By registering with Labby to access and use the Services, Labby may send communications or data regarding the Products, Services or Documentation, including but not limited to: (i) notices about Customer’s use of the Services, including any notices concerning violations of use; (ii) updates or other notices; and (iii) promotional information and materials regarding Labby products and services, in each instance via the electronic mail (email) address associated with each account. You may opt out of receiving promotional emails from Labby by following the opt-out instructions provided in the message.
1.10. Restrictions. Customer will not, and will not permit any Affiliates, Authorized Users or third parties to: (i) sublicense, lease, rent, loan or otherwise transfer to any third party any rights of Customer’s hereunder to access or use the Services or make the Services available to or for the benefit of any third party as part of any time-sharing, cloud services, or service bureau arrangement; (ii) use the Products, Services or Documentation to develop, or assist a third party, in developing a competing or similar service or product; (iii) permit access to the Services by two or more individual users using the same access information (e.g., username and password); (iv) allow the introduction of any harmful or malicious code into the Services that causes or is designed to disrupt, disable, harm or otherwise impair in any manner the Services, the operation thereof, or to allow Customer or any other third party to access, damage, or corrupt any data, storage media, programs, equipment or communications of or on the Services; (v) remove or modify any program markings or identification, proprietary, copyright or other notice of Labby’s or its licensors’ proprietary rights contained in the Services; (vi) modify, adapt, alter, translate or create derivative works from the Services or reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Services; (vii) perform any act that would constitute an infringement of intellectual property or other proprietary rights of Labby or any third party; (viii) violate applicable laws, ordinances or regulations; or (ix) use the Services or Documentation in any manner except as expressly authorized by Labby. In addition to any other rights afforded to us under this Agreement, Labby reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions including the removal or disablement of access to such material. Labby shall have no liability to Customer in the event that we take such action.
2. INTELLECTUAL PROPERTY.
2.1. Customer Data. The Services may allow you to upload, download, store, or transmit user-generated data or information, including Farm Identification Number and the radio-frequency indemnification (RFID) Number assigned to a particular animal (“Customer Data”). Customer shall own all right, title, and interest in and to Customer Data. By submitting Customer Data to this Services, you grant Labby a nonexclusive, worldwide, royalty-free, assignable, sublicensable, transferable, perpetual right and license to use, copy, disseminate, transfer, transmit, share (including with Labby partners and authorized resellers), and display Customer Data in connection with Labby’s operation of the Services. You further grant Labby a nonexclusive, perpetual, assignable, sublicensable, transferable, worldwide, royalty-free right and license to use, copy, display, reproduce, modify, edit, adapt, publish, translate, display, distribute, transfer, sublicense, create derivative works of, and compilations incorporating, Customer Data to provide benchmarking, performance improvement, marketing and advertising, and other lawful purposes in connection with the operation of Labby’s business, including without limitation as it relates to the design, manufacture, distribution, sale and/or promotion of any Products. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, CUSTOMER DATA THAT YOU POST OR PROVIDE THROUGH THE SERVICES. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON CUSTOMER DATA, OR OTHER CONTENT YOU FIND ON THE SERVICES IS SOLELY YOUR RESPONSIBILITY.
2.2. Data Analysis. Customer shall use Labby’s Products to allow Labby to analyze each Sample. The analysis performed by Labby of each Sample will derive, at a minimum, fat, protein, and somatic cell counts, and any other data made available by Labby through the Products or Services (collectively, “Results”). Absent extenuating circumstances, the Results shall be accessible to Customer through one or more features of the Services within 24 hours. Customer shall have the unrestricted right to use, copy, print, display, reproduce, and distribute the Results solely for Customer’s internal business purposes. Customer may also freely transmit the Results to third parties that are related to Customer including, without limitation, Customer’s directors, officers, employees, agents (e.g. veterinarians) or other representatives, but only to the extent such persons are entitled to receive Results from Customer because of a pre-existing business or employment relationship. Except as provided herein, the restrictions set forth in Section 1.10 shall apply to Customer’s use of the Results to the extent applicable and, for the avoidance of doubt, Customer is prohibited from using, copying, printing, displaying, reproducing, publishing, posting, transmitting or otherwise distributing the Results to any third party that is a competitor of Labby, or from developing a competing product or service using the Results. Labby owns all right, title, and interest in and to the Results, including all analyses, outputs, developments, enhancements, modifications, and insights that arise from the Results and/or from any operation or set of operations performed by Labby or the Services on the Results, such as the collection, recording, organization, structuring, storage, adaptation or alteration, use, or combination of the Results with other data. Labby owns all patent rights, copyrights, trade secrets, trade names, service marks, trademarks, moral rights, know-how and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force (collectively, “Intellectual Property Rights”) arising from or related to the Results. Customer shall be responsible for any breach of this section by it, its Affiliates, Authorized Users and any third parties to whom Customer provides access to Results, whether such access is authorized or unauthorized.
2.3. Labby’s Rights in and to Labby Materials. The Services, the Documentation, all Feedback, our systems, our databases, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by Labby or any subcontractor engaged by Labby in connection with the Services or otherwise comprise or relate to the Services, the designs of each of the foregoing, and any and all Intellectual Property Rights in the foregoing (collectively, the “Labby Materials”) shall at all times remain the exclusive property of Labby and its third-party licensors. Labby or its licensors exclusively own all right, title and interest in and to the Labby Materials, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto. Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Labby Materials. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any Intellectual Property Rights granted herein. In the event you are ever deemed to be the owner of any of the Labby Materials, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Labby’s right, title and interest in the Labby Materials. The sole exception of the foregoing reservation of rights is the authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Labby IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
2.4. Feedback. We welcome your comments, feedback, information, or materials regarding the Services, Documentation, or any of the Products (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
2.5. Marks. “Labby,” the Labby logo and all Product names (including but not limited to “MilKey”) are trademarks or service marks of Labby or its Affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that Customer shall have the limited right to use the Marks solely as they appear in the Products, Services, or Documentation. Customer shall not remove, alter or obscure any Marks or proprietary notices contained in the Products, Services, Documentation or any other material provided by Labby.
3. FEES; PAYMENT.
3.1. Fees. The applicable fees for Services provided under this Agreement are set out on the applicable Purchase Order(s) or otherwise made available through the Services (“Fees”). All Fees shall be paid in accordance with the Purchase Order or as otherwise specified on the Services. Fees for any Renewal Term (defined below) or additional Products or Services will be based on the then list price for the Services provided, unless the parties agree in writing to different pricing.
3.2. Payment. All payments are non-refundable (except as expressly set forth in this Agreement). Customer will make all payments in U.S. dollars within thirty (30) days of the invoice date and will pay all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Labby). Any late payments will be subject to a service charge equal to one and one half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less. Labby may suspend the Services at any time following Customer’s failure to make a payment for such Service when due.
4. TERM; TERMINATION.
4.1. Term. This Agreement is effective as of the earlier of (i) Effective Date established in the applicable Purchase Order; or (ii) your acceptance of this Agreement in connection with your access to the Services, and continues in effect until the earlier of the date of termination by either Party pursuant to this Section 4 or the date which Labby ceases offering the Services. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party.
4.2. Termination For Cause. If either Party breaches any material provision of this Agreement, the non-breaching Party may, upon providing written notice of such breach, terminate this Agreement in its entirety, if the breach is not cured within fifteen (15) days following such notice. Notwithstanding the foregoing, Labby may immediately terminate this Agreement (i) upon written notice in the event Customer breaches this Agreement after receiving two prior breach notices; or (ii) if Customer breaches the licenses granted hereunder.
4.3. Effects of Termination. Upon expiration or termination of this Agreement, we will terminate or limit your access to the Services to read-only and you must promptly pay to us any amounts payable or accrued but not yet payable to us, including any deferred payments or payments we have previously agreed to be made over time. Following termination of this Agreement and for a period of ninety (90) days after the termination effective date, and upon written request to Labby, we will cooperate with you in effectuating a transition of your Customer Data and any Results that have been processed in the previous six (6) months in CSV format. Within thirty (30) calendar days of the request, we will transfer your Customer Data and a copy of the Results to you, as available. Labby shall permanently delete all Customer Data and Results from its servers after ninety (90) days and Labby shall have no responsibility to respond to a request made after that time. Labby will not be responsible for the disposition of any Products purchased by Customer, including but not limited to the removal, storage, transportation, or disposal of such Products. Labby, at its sole discretion, reserves the right to offer to buy-back any Products from Customer, for a fee as negotiated by the Parties and at Customer’s sole expense. Within fifteen (15) days of expiration or termination of this Agreement, Customer shall destroy, or if requested by Labby, return all Confidential Information (including all copies of the same).
4.4. Survival. The following sections shall survive the termination or expiration of this Agreement: 1.10 (Restrictions), 2 (Intellectual Property), 4 (Term; Termination), 5 (Warranty Disclaimer), 6 (Indemnification), 7 (Limitation of Liability), 8 (Confidential Information), 9 (Dispute Resolution and Governing Law, Jurisdiction and Costs) and 10 (General Provisions).
5. WARRANTY DISCLAIMER.
5.1. Limited Services Warranty. Labby warrants that, to its knowledge, the Services, as provided by Labby, do not violate or otherwise infringe the intellectual property rights of any third party and such Services not and will not contain any malicious content intended to harm devices or data.
5.2. EXCEPT AS OTHERWISE PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, DOCUMENTATION, AND RESULTS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
5.3. WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT SERVICES, DOCUMENTATION, OR RESULTS WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES OR DOCUMENTATION WILL BE CORRECTED, THAT THE SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, RESULTS OR OTHER MATERIALS OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
5.4. ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, RESULTS) IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. INDEMNIFICATION.
6.1. By Customer. Customer agrees to indemnify, defend and hold harmless the Labby Parties (defined below) from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with Customer’s or its Authorized Users’: (i) use or misuse of the Products, Services, Documentation or any other related services; (ii) violation of this Agreement; (iii) actual or threatened violation of the restrictions set forth in Section 1.10 ; (iv) violation of any law or the rights of Labby or any third party, including but not limited to privacy rights and the unauthorized use or disclosure of Confidential Information; and (v) negligence or willful misconduct.
6.2. By Labby. Labby shall indemnify and defend Customer from any claims, liabilities, or suits brought against Customer by a third party to the extent it is based on a claim that the Services infringe a registered patent, copyright or trademark (each, an “Infringement Claim”). Labby’s obligations with respect to this section are conditioned upon: (a) Customer providing Labby with prompt written notice of the Infringement Claim or threat thereof; (b) Customer giving Labby full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (c) Customer giving Labby all information and assistance reasonably requested by Labby in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal. If an Infringement Claim has been made, or in Labby’s opinion is likely to be made, Labby may, at its sole option and expense, either: (i) procure for Customer the right to continue using the Services; (ii) replace or modify the portion of the Services that is infringing so that it becomes non-infringing; or (iii) terminate both Parties’ respective rights and obligations under this Agreement with regard to the Services, and refund to Customer a pro-rata amount of any prepaid fees actually paid by Customer for the unused portion of the Services. Notwithstanding the foregoing, Labby shall have no obligation to indemnify Customer to the extent an Infringement Claim arises from (w) the combination, operation or use of the Products or Services with any other software, data, products or materials not supplied by Labby; (x) the use of the Products or Services in violation of the terms and conditions of this Agreement; (y) the alteration or modification of the Products or Services; or (z) Customer’s continued use of the Products or Services after Labby has informed Customer of modifications or changes to the Services required to avoid the Infringement Claim.
7. LIMITATION OF LIABILITY.
7.1. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL LABBY, ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “LABBY PARTIES”) BE LIABLE TO CUSTOMER, IT’S AFFILIATES, AUTHORIZED USERS OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF, BASED ON OR RESULTING FROM THIS AGREEMENT OR CUSTOMER’S, ITS AFFILIATES AND ITS AUTHORIZED USERS’ ACCESS TO, USE OF, MISUSE OF OR INABILITY TO USE THE PRODUCTS, SERVICES , THE RESULTS AND ANY OTHER SERVICES, EVEN IF LABBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES).
7.2. IN NO EVENT SHALL THE LABBY PARTIES’ TOTAL LIABILITY TO CUSTOMER, ITS AFFILIATES, AUTHORIZED USERS OR THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS, THE SERVICES, THE RESULTS, DOCUMENTATION OR ANY OTHER SERVICES WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO LABBY WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTANCE OF MUTLIPLE CLAIMS DOES NOT ENGLARGE THIS LIMIT.
7.3. THE LIMITATIONS WITHIN THIS SECTION SHALL IN NO WAY APPLY TO OR LIMIT THE LIABILITY OR RESPONSIBILITY OF CUSTOMER FOR ITS (I) BREACH OF CONFIDENTILAITY OR SECURITY OBLIGATIONS HEREUNDER; (II) ITS INDEMNIFICATION OBLIGATIONS HEREUNDER; (III) ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) ITS LIABILITY FOR INJURY TO PROPERTY, DEATH OR BODILY INJURY.
8. CONFIDENTIAL INFORMATION.
8.1. Definition. “Confidential Information” means any non-public material or information disclosed by the disclosing party (“Disclosing Party”) to the receiving party (“Receiving Party”) either directly or indirectly, in writing, orally, by inspection of tangible objects or through any other media. Confidential Information includes, but is not limited to, the terms of this Agreement, Documentation, other information relating to the Products and Services, information regarding a Party’s current, future and proposed products and services, product designs, plans and roadmaps, prices and costs, trade secrets, patents, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, customer lists, suppliers, investors, employees, business and contractual relationships, sales and marketing plans, whether disclosed before or after the Effective Date, and any other information the receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information also includes any and all nonpublic information provided to the Disclosing Party by third parties.
8.2. Exclusions. Confidential Information shall not include information that: (i) is or becomes generally available to the public through no fault of the Receiving Party (or anyone acting on its behalf); (ii) was previously lawfully known to the Receiving Party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the Receiving Party by a third party who may rightfully transfer and disclose the information without restriction and free of any obligation to keep it confidential; or (iv) is independently developed by the Receiving Party or a third party without reference or access to the Disclosing Party’s Confidential Information.
8.3. Obligations. The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they shall hold all Confidential Information of the other Party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other Party to any person or entity except as specifically permitted in this Agreement. Each Party may disclose Confidential Information of the other Party only to those of its employees, contractors, consultants and advisors who have previously agreed to be bound by terms and conditions at least as restrictive as those set forth in this Agreement and who have a need to know such information.
8.4. Disclosure Required by Law. The Receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the Receiving Party shall use all reasonable efforts to provide the Disclosing Party with at least ten (10) days’ prior notice of such disclosure; (ii) the Receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished; and (iii) the Receiving Party shall use reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
9. DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS.
9.1. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts and the United States, without regard to conflict of law provisions thereof. Any legal proceedings that arise under this Agreement shall be brought in Suffolk County, Massachusetts or, if applicable, the United States District Court for the District of Massachusetts.
9.2. Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services, Results, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Labby agree to resolve such Dispute through confidential binding arbitration as set forth below.
9.3. Binding Arbitration. If you and Labby are unable to resolve a Dispute through informal negotiations, either you or Labby may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website (www.adr.org). The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Labby may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
9.4. Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
10. GENERAL PROVISIONS.
10.1. Relationship of Parties. The relationship between Labby and Customer is one of independent contractors, and this Agreement does not and will not establish any relationship of partnership, joint venture, employment, franchise or agency between Labby and Customer. Neither has the power to bind the other or incur obligations on the other’s behalf.
10.2. Assignment. Customer shall not assign this Agreement, or any of the rights or obligations hereunder without Labby’s prior written consent. Assignments made in violation of this Section 10.2 will be null and void and of no force or effect. This Agreement binds and inures to the benefit of Customer and Labby and the respective permitted successors and permitted assigns.
10.3. Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
10.4. Entire Agreement; Severability. This Agreement sets forth the entire and exclusive understanding and license between Customer and Labby and supersedes and cancels all previous written and oral agreements, communications, and other understandings related to the subject matter of this Agreement. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain unaffected.
10.5. Waiver. No waiver by Labby of any right or provision under this Agreement shall constitute a subsequent or continuing waiver of such right or provision or any other rights or provisions under this Agreement. Failure to act or delay in acting by Labby shall not constitute a waiver of any right or remedy.
10.6. Notices. All notices under this Agreement will be through electronic mail (e-mail) to the address associated with Customer’s account. All agreements, notices, disclosures, and other communications sent to Customer electronically will satisfy any requirement that such communication be in writing.
10.7. Force Majeure. Neither Party shall be liable to the other for any delay or failure in the performance of its obligations hereunder if and to the extent the delay or failure is due to events beyond the reasonable control of the Parties, including, but not limited, to acts of God, strikes, pandemics or epidemics, blockades, governmental orders, terrorism, riots, natural disasters, internet and power outages or distortions (“Force Majeure Events”).
10.8. Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Labby will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
EXHIBIT 1 – PRODUCTS
In addition to the terms in the Agreement, Customer’s selection, procurement, and use of the Products is governed by this Exhibit 1, and the terms and conditions of this Exhibit 1 are incorporated by reference into the Agreement and the applicable Purchase Order between Customer and Labby. In the event of conflict between this Exhibit 1 and the Agreement, the terms and conditions of this Exhibit controls with respect only to the Customer’s selection, procurement, and use of the Products.
1. Product Orders
1.1. General. This Section governs your purchase of Products that are offered for sale directly from Labby or through our network of authorized retailers, partners, licensors and fulfillment centers (collectively, “Partners”). All Products offered are subject to availability and prices for Products are subject to change without notice at any time. All orders for Products placed by you through a “Purchase Order” or an “Order” are subject to acceptance by us and/or our Partners. Customer may enter into a separate Purchase Order with an authorized reseller of Labby, in which case additional or differing terms may apply than those provided herein; provided, however, no Purchase Order of any authorized reseller shall amend or alter the terms of Sections 2.3, 3 and 4 of this Exhibit 1. All Orders shall, at a minimum, identify the Products purchased, quantities, price, shipping costs, and taxes. Labby reserves the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed. We may attempt to contact you if all or a portion of your Order is cancelled, or if additional information is needed to complete and accept your Order. Products may be made available for reservation and pre-order via the Services. If you pre-order a Product that is not yet available for sale, we may, depending on the offer, charge your Payment Method (defined below) for the cost of the Product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available. Labby reserves the right to put limitations on the combining, stacking, and use of any and all promotions offered via the Services, email, social media, or any other channels where promotions are detailed and/or distributed. Labby reserves the right to pause all promotions, codes, and referral programs for some sales and for all new Product launches.
1.2. Product Purchasing. To purchase a Product, you will be required to provide information regarding your credit card or other payment instrument (“Payment Method”) to our third party payment processor (“Provider”). You represent and warrant to Labby, our Partners, and our Provider that the information pertaining to your Payment Method is true and that you are an authorized user of the Payment Method. You hereby authorize us through our Provider to bill to your Payment Method in accordance with the terms of the Order for the Products you are purchasing. If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee up to the maximum amount permitted under applicable law and seek any other damages or remedies available. When providing a Payment Method, our Provider may allow you to keep such Payment Method on file in order to facilitate future Orders (Labby does not retain, store, or otherwise manage credit card information). If you want to use a different Payment Method than the one you signed up to use during registration or when you placed an Order, you may edit your Payment Method information by logging into your account management tools on the Services, which securely connects to our Provider. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, we may reject your Order. If we do not reject your Order, you authorize us to charge you for any Product purchases you make, and you will remain responsible for any uncollected amounts. If your order is flagged by our system as a high risk of fraud, we reserve the right to refuse to fulfill and refund your Order.
1.3. Taxes. You are responsible for, and agree to pay, all taxes, fees, and any other duties or surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold Labby and our Partners harmless for any liability for taxes owed in connection with the sale of a Product. It is your responsibility to pay the import and customs duties and fees that are incurred as a result of any international shipment.
1.4. Billing Details. Please email us at the email address provided in the Order if you would like to receive more detailed account history or billing information, if you believe there are any billing errors, or if you have any other questions related to your account history or bill. You must notify us or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information.
2. Order Fulfillment
2.1. Shipping. Labby uses commercially reasonable efforts to ship Products within 90 - 120 business hours of Order acceptance. Some Products may be shipped from our Partners. Labby does not guarantee shipping or delivery times and is not liable for the actions or conduct of our Partners or shipping carriers. A delayed delivery of any part of an Order does not entitle you to cancel other deliveries. Labby is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Labby’s, our Partner’s, or our shipping carrier’s reasonable control including, but not limited to, Force Majeure Events. In the event of Force Majeure Event, Labby’s time for performance shall be extended for a period equal to the time lost as a consequence of the Force Majeure Event without subjecting Labby to any liability or penalty. Labby may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to you.
3. Limited Product Warranty. Labby warrants the Product to be free from defects in materials and workmanship (subject to the terms set forth herein) when used normally in accordance with the official Documentation for such Product for a period of 90-days from the date of purchase (the “Warranty Period”). If the Product contains a battery, Labby does not provide any warranties for battery life, as all batteries can be expected to lose charging capacity over time and this is not considered a defect. Your actual battery life will vary depending on the conditions in which it is used.
4. Exclusions and Limitations. This Limited Warranty does not cover:
4.1. non-Labby branded products and accessories, even if packaged and sold with the Product;
4.2. problems with and/or damage to the Product caused by using accessories, parts, or components not made by Labby;
4.3. Products not installed, used, maintained (including preventative maintenance), and serviced in accordance with any manual and other guidelines provided for the Product;
4.4. damage caused by service (including upgrades and expansions) performed by anyone who is not officially acting as an employee, representative or sub-contractor of Labby;
4.5. claims arising from any unacceptable use or care of the Product, including (without limitation) misuse, abuse, negligence, unauthorized modification or repair, or any operation of the Product outside Labby’s recommended parameters;
4.6. claims arising from external causes, including (without limitation), accidents, acts of God, liquid contact, fire, flood or earthquake;
4.7. Products with a serial number or date stamp that has been altered, obliterated or removed;
4.8. Products for which Labby has not received payment; or
4.9. cosmetic damage, minor cosmetic abnormalities (including minor pixel abnormalities) and normal wear and tear, including (without limitation), scratches, dents and chips.
5. Labby does not warrant that the operation of the Product or Services will be uninterrupted or error-free. ALL SOFTWARE AND THIRD PARTY PRODUCTS AND ACCESSORIES PROVIDED WITH THE PRODUCT ARE PROVIDED "AS IS". You assume the entire risk as to the quality, performance, accuracy and effect of such items, and should any prove defective, you, and not Labby, assume the entire cost of all necessary servicing or repair.
6. Remedies under this Limited Warranty. If an eligible claim on the Limited Warranty is received by Labby within the applicable Warranty Period, Labby will (at its sole option) either: (a) repair the Product or the defective parts at no charge, using new or refurbished replacement parts; (b) provide a credit for a value equivalent to the retail purchase price of the defective Product or applicable defective part; or (c) exchange the Product or defective part with a Product or part that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Product or part. Labby reserves the sole right to determine whether a claim is eligible and/or whether the Product is defective. Labby has the sole option to provide any other type of remedy in addition to or in substitution of the aforesaid remedies. Repaired or exchanged Products shall be warranted free from defects for a period of ninety (90) days after date of repair or exchange (as the case may be), or for the remainder of the original Warranty Period, whichever is longer.
7. Entire Limited Warranty. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, LABBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. LABBY DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE PRODUCTS OR SERVICES WILL MEET THE USER’S REQUIREMENTS; THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE DISCLAIMED. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This Limited Warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction. No Labby supplier, distributor, dealer, agent, or employee is authorized to alter or extend the terms of this Limited Warranty or to make any representation whatsoever.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL LABBY BE LIABLE FOR ANY LOST PROFIT OR LOST DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (OTHER THAN PERSONAL INJURY DAMAGES), HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE A PRODUCT OR THE SERVICES, EVEN IF LABBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LABBY’S LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT OR SERVICES. The foregoing limitations will apply even if any warranty or remedy provided under this Agreement fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
9. Help Resources. Before lodging a claim on the Limited Warranty, please review the online help resources at www.labbyinc.com/support. If the Product is still not functioning properly after making use of these resources, please contact Labby through www.labbyinc.com or your authorized distributor or dealer. You may be required to assist with the diagnosis process to verify and ascertain any issues which you may be facing with the Product. Service options, parts availability and response times may vary depending on the country in which the Limited Warranty claim is lodged.
10. How to make a Limited Warranty claim.
11. IF YOU PURCHASED THE PRODUCT FROM A LABBY DISTRIBUTOR OR RESELLER, PLEASE CONTACT THE DISTRIBUTOR OR RESELLER IN REGARDS TO YOUR LIMITED WARRANTY CLAIM.
12. If you are unable to return the Product to the Labby distributor or reseller for whatever reason, or if you have purchased the Product directly from Labby, then please follow the steps below:
12.1. Go to www.labbyinc.com/support to obtain a Return Merchandise Authorization Number (“RMA Number”).
12.2. Note the RMA Number in a visible place on the outside of the package.
12.3. Enclose a Valid Proof of Purchase and the reason for the return inside the package. Please visit www.labbyinc.com/warranty for examples of a Valid Proof of Purchase.
12.4. Send the Product with RMA Number and Valid Proof of Purchase to the Labby support address provided by Labby customer support.
13. DO NOT SEND LABBY ANY PRODUCT WITHOUT A VALID RMA NUMBER.
13.1. We advise that you select a method of shipping that is traceable (eg. UPS, DHL, FedEx). Any expense of claiming under this Limited Warranty will be borne by the person making the claim (including any shipping and handling charges in returning the Product to Labby, as well as any applicable customs, duties or taxes in relation to the claim). If the Product is validly returned under the terms of this Limited Warranty, Labby will be responsible for postage expenses for shipping the Product back to you (but not any customs charges, duties, or taxes). You are responsible for ensuring that the Product is properly packaged and will bear the full risk of loss or damage for any Product that is returned improperly packaged. Risk of loss or damage in the returned Product only passes to Labby when the Product is received by Labby and Labby shall not be responsible for items lost in transit to us. In the event that the procedure herein is not followed, Labby reserves the right to accept the delivery of the Product on such terms that it may determine at its sole discretion.
14. Returns Not Covered by this Limited Warranty. If Labby receives a Product that does not meet the requirements of this Limited Warranty, including (but not limited to) a Product that (a) lacks a valid RMA Number, (b) is not accompanied by a Valid Proof of Purchase, (c) is no longer covered under the Warranty Period, or (d) does not have a defect covered by this Limited Warranty, you may be responsible for an assessment fee, return shipping and handling fees, and other reasonable fees as may be required by Labby prior to the Product being returned to you.
15. Software/Data Backup. Repair of a Product may result in loss of data. It is solely your responsibility to complete a backup of all existing data, software, and programs on the Product before returning the Product or receiving technical assistance services from Labby (including telephone support). LABBY WILL HAVE NO LIABILITY FOR LOSS OF OR RECOVERY OF DATA, SOFTWARE, PROGRAMS, OR LOSS OF USE OF ANY PRODUCT. Under no circumstances will Labby be responsible for any loss of data, software, or programs, even if Labby technicians have attempted to assist you with your backup, recovery or similar services. Any such assistance is beyond the scope of this Limited Warranty. Following service under this Limited Warranty, your Product may be returned to you as configured when originally purchased, subject to applicable updates. You will be responsible for reinstalling all other data, software and programs.
16. Consumer Law. This Limited Warranty gives you specific legal rights, and you may have other rights that vary by your country, province or state, as applicable. Other than as permitted by law, Labby does not exclude, limit or suspend other rights you may have. For a full understanding of your rights, you should consult the laws of your country, province or state, as applicable.
17. General. This Limited Warranty applies only to the original purchaser of the Product and is nontransferable. This Limited Warranty is only valid in the country where originally purchased. If the Product was shipped internationally by an authorized reseller, the country of original purchase is the shipping point of the reseller. This Limited Warranty is governed by and construed under the laws of the country in which the original Product purchase took place. No Labby reseller, agent, distributor, or employee is authorized to make any modification, extension or addition to this Limited Warranty. If any term of this Limited Warranty is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired. The remedies provided herein are the exclusive remedies under this Limited Warranty, whether based on contract, tort or otherwise.
