THE LABSTER SERVICE USER TERMS
1. THE LABSTER SERVICES
1.1 The Labster Services means the online service to be found on www.labster.com providing online fully interactive advanced lab simulations. ‘Labster Service” is produced and marketed by Labster ApS (“Labster”), a Danish Company duly incorporated in Denmark with the Danish Business Authorities under the company number 34457808. For more information on Labster please visit www.labster.com.
1.3 By accepting these Terms, Customer acknowledges and accept the functionality of the Labster Services, which may change from time to time, as documented on www.labster.com.
1.4 The functionality of the Labster Services is provided as is. Labster does not warrant an error free service.
1.5 The technical requirements and the technical user support delivered by Labster is detailed Labster Technical Requirements and Support Terms to be found here.
2. THE USE OF THE LABSTER SERVICES
2.1 Before the Customer uses the Labster Services, the Customer shall make himself/herself familiar with the functions of the Labster Services.
2.2 Any use of the Labster Services is the sole responsibility of the Customer.
2.3 A Customer’s log in/account is personal and may not be used by anybody else than the Customer.
2.4 Any experiment carried out within the Labster Services may not be repeated outside the Labster Services without qualified guidance, as this may pose a high risk for personal injuries.
2.5 If the Customer is a pupil or a student, the Customer is aware of and accepts that the use of the Labster Services will be monitored by his/her teachers/professors.
2.6 Customer hereby agrees to indemnify and hold harmless Labster against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Labster Services.
2.7 Although Labster has no obligation to monitor Customer’s use of the Labster Services, Labster may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of these terms.
2.8 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Labster Services, including, without limitation, internet access, personal computer with appropriate software, including updated operating systems, compatible web browsers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customers account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. INTELLECUAL PROPERTY RIGHTS
3.1 Labster shall own and retain all right, title and interest in and to the Labster Services and pertaining software, all improvements, enhancements or modifications thereto, and all intellectual property rights related to any of the foregoing.
4. CUSTOMER DATA
4.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.
5. PAYMENT OF FEES
5.1 Customer will pay Labster the applicable fees in advance for access to and use of the Labster Services in accordance with the terms therein (the “Fees”). Labster reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the agreed Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
5.2 If Customer believes that Labster has charged Customer incorrectly, Customer must contact Labster no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Labster’s customer support department.
6. WARRANTY AND DISCLAIMER
6.1 Labster shall use reasonable efforts consistent with prevailing industry standards to maintain the Labster Services in a manner which minimizes errors and interruptions in the Labster Services. The Labster Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Labster or by third-party providers,or because of other causes beyond Labster’s reasonable control, but Labster shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, LABSTER DOES NOT WARRANT THAT THE LABSTER SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE LABSTER SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE LABSTER SERVICES ARE PROVIDED “AS IS” AND LABSTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Labster shall hold Customer harmless from liability to third parties resulting from infringement by the Labster Services of any patent or any copyright or misappropriation of any trade secret, provided Labster is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Labster will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Labster Services (i) not supplied by Labster, (ii) made in whole or in part in Labster Inc /EIN: 81-48172482 accordance with Customer specifications, (iii) that are modified after delivery by Labster, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Labster Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Labster Services are held by a court of competent jurisdiction to be or are believed by Labster to be infringing, Labster may, at its option and expense (a) replace or modify the Labster Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Labster Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Labster Service.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LABSTER AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LABSTER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LABSTER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LABSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 If either party is prevented from fulfilling its obligations under the Agreement as a result of extraordinary events beyond the control of the party and which the party could not have foreseen when the Agreement was entered into (force majeure), this shall not be considered a breach.
8.3 Neither of the parties shall be liable for a failure to fulfil their obligations under the Agreement if the failure to perform is due to force majeure as set out in the clause above.
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Labster’s prior written consent. Labster may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Labster in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.3 The parties submit all their disputes arising out of or in connection with these Terms to the exclusive jurisdiction of the Courts of the United States of America.
9.4 Labster Inc /EIN: 81-4817248