LABSTER TERMS OF SERVICE AND USE
Last Updated: July 17, 2023
Welcome, and thank you for your interest in Labster (as defined below, and also referred to as “we”, “us”, or “our”), which operates the websites located at https://www.labster.com/ and https://www.ubisimvr.com (individually each, and collectively, hereinafter referred to as the “Website”), and any products and services that Labster may provide now or in the future. The following Terms of Service and Use are a legal contract between you (“you” and “your”) and us regarding your use of the Services (as defined below). Visitors to the Website and users of the Services are referred to individually as “User” and collectively as “Users” (as further defined below).
IF YOU ARE A PARENT OR LEGAL GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE AND/OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH CHILD'S USE OF THE WEBSITE AND/OR SERVICES. IF YOU ARE SCHOOL PERSONNEL (AS DEFINED BELOW) AND YOU REGISTER A STUDENT USER (AS DEFINED BELOW), YOU AGREE, ON BEHALF OF YOUR INSTITUTION, THAT THE STUDENT USER IS BOUND BY THESE TERMS, UNLESS YOUR INSTITUTION HAS A SEPARATE WRITTEN SOFTWARE SERVICES AGREEMENT WITH LABSTER THAT ACCEPTS THESE TERMS ON BEHALF OF STUDENT USERS.
PLEASE NOTE THAT THESE TERMS INCLUDE A BINDING ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER. BY AGREEING TO BINDING ARBITRATION, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU WAIVE YOUR RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE YOUR CASE.
1.1 “Access Credentials” means any User’s name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Website and/or Services.
1.2. “Affiliate” of:
1.2.1. Labster means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, where the term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of an entity and/or its employees, whether through the ownership of voting securities or ownership of voting securities of an entity, or by contract; or
1.2.2. User, means, if the User is an academic institution, business entity, or otherwise not a natural person, any other school within its district, or college or university system, or similar collective or cooperative that the Customer or Customer’s agents has authority to bind in contract.
1.3. “Anonymized Aggregated Statistics” means anonymized aggregate data and anonymized information related to your use of the Website and Services that are used by us to compile anonymized statistical and performance information related to the provision and operation of the Website and Services. Once anonymized, Anonymized Aggregated Statistics shall not contain Personally Identifiable Information.
1.4. “Custom Scenario” means a virtual reality scenario using only the UbiSim Software (as defined below), that is either:
1.4.1. Developed exclusively by you; or
1.4.2. The portion of a UbiSim Software simulation that is customized by you.
1.5. “Documentation” means our user manuals, handbooks, and guides relating to your use of the Services, or documentation provided to you as a result of your use of the Website, provided by us to you either electronically or in hard copy form.
1.6. "Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to:
1.6.1. Permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or
1.6.2. Prevent you and any other User from accessing or using the Website and/or Services as intended by these Terms.
1.7. “Labster” means: (a) if you are located in Canada, the United States, or Mexico (“North America”), then Labster Inc., a Delaware corporation, EIN: 81-4817248, with a principal place of business at 561 Windsor Street, Suite B302, Somerville, Massachusetts 02143; or (b) if you are not located in North America, then Labster ApS, a Danish private limited company, CVR: 34457808, with a principal place of business at Skelbaekgade 2, 4. Sal, 1717 Copenhagen V, Denmark.
1.8. “Labster Materials” means, including but not limited to the UbiSim Software: (a) the name, logo, and domain name of Labster, the product names associated with the Website and Services, and other trademarks; (b) the specifications, Documentation, simulations, certain audio and visual information, documents, software, and other works of authorship; and (c) any and all other information, data, documents, materials, works, other content, software, devices, hardware, products, processes, methods, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Labster or any subcontractor in connection with the Services or otherwise comprise or relate to the Services provided to you in connection with the foregoing. For the avoidance of doubt, Labster Materials include Anonymized Aggregated Statistics and any information, data, or other content derived from Labster’s monitoring of your access to or use of the Website and Services, but do not include User Data.
1.9. “Order(s)” means each: (a) order form; (b) quotation; (c) estimate; (d) statement of work (as applicable); (e) invoice; and (f) online ordering platform, website, or submission; which sets forth the products and/or services, length of access, Fees, etc. entered into with an academic institution, business entity, or other party.
1.10. “Personally Identifiable Information” shall have the same meaning and definition as set forth in the applicable data privacy legislation, including, but not limited to, FERPA, the GDPR, or CCPA.
1.12 “Service Level Agreement” means, to the extent applicable to your use of the Services, our Service Level Agreement found at https://www.labster.com/service-level-agreement/, which shall apply solely to the provision and support of the Services.
1.13 “Services” means our cloud-based software-as-a-service offering, the UbiSim Software, and any Labster Materials described in an applicable Order and/or made available to you, including, but not limited to, our interactive advanced laboratory simulations, lab manuals, websites, and customer portal. For the avoidance of doubt, these Services may be provided in a limited capacity, with certain features and/or functionality not available or reduced, as may be stated in an applicable Order, which may include, but is not limited to: fewer simulations and Documentation, no Integrated Service availability, no access to Community Scenarios, or reduced support services.
1.14 “UbiSim Software” means the proprietary virtual reality software training platform for nursing provided by us (including all updates and upgrades, interfaces, virtual reality scenarios, and other developments made by us in connection with the UbiSim Software) as set forth in an applicable Order, and as may be made available at https://ubisimvr.com/.
1.15 “User”, in regard to the Services, further includes: (a) any employee, including faculty and staff of an educational institution (individually, and collectively, “School Personnel”), and students of an educational institution (individually, and collectively, “Student Users”) who are authorized by the educational institution to access and use the Services under the rights granted to the educational institution hereunder, which may be further subject to the terms and conditions of a separate software services or software access agreement; and (b) any individual, not School Personnel or Student Users, using the Services as further described in Section 2.
1.16 “User Data” means, other than Anonymized Aggregated Statistics, information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you by or through the Website and Services, or that incorporates or is derived from the processing (as such term may be defined by applicable data privacy laws) of such information, data, or content by or through the Website and Services.
1.17 “User Systems” means your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including learning management systems), networks, whether operated directly by you or through the use of third-party services.
2. Access and Use.
2.1. Provision of Access. Subject to and conditioned on your payment of any applicable Fees, and your compliance with these Terms, we hereby grant you a limited, non-exclusive, non-transferable (except in compliance with Section 13.7) right to access and use the Website and Services during the Access Period (as defined below, and as applicable), solely for your use in accordance with these Terms. Your use of the Services is limited to your personal educational use. We shall: (a) share with you any necessary Access Credentials to allow you to access the Website and/or Services through a User System; or (b) provide to you the necessary Access Credentials to allow you to access the Website and/or Services. Nothing in these Terms shall obligate us to continue providing access to the Website and Services beyond the date when we cease providing such access to the Website and Services to Users generally.
2.1.3. Instructor Features. We may make available certain editable features, tools, and materials within the Services, including the Labster Materials, that permit School Personnel to work with Student Users through the Services in order to provide such Student Users with tutorial, educational, and other education-related services as part of the School Personnel’s curriculum, and to review and evaluate educational achievement and progress of such Student Users (“Instructor Features”). School Personnel are responsible for complying with any and all applicable intellectual property laws and obligations from the use of any third party materials in such Instructor Features, and hereby grants to Labster a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the resulting content derived from the Instructor Features (“User Created Content”).
2.2. Use Restrictions. You shall not use the Website and Services for any purposes beyond the scope of the access granted in these Terms. Unless otherwise permitted in these Terms or required by applicable law, you shall not at any time, directly or indirectly:
2.2.1. Edit, alter, abridge, or otherwise change in any manner the content of, or to copy, modify, or create derivative works of, the Website and Services in whole or in part;
2.2.2. Rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Website and Services for any commercial purpose;
2.2.3. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Website and Services, in whole or in part;
2.2.4. Remove, delete, alter, or obscure any copyright, trademark, or other proprietary notices from the Website and Services;
2.2.5. Bypass or breach any security device or protection used by the Website and Services, or access or use the Website and Services, other than by you through the use of your own then valid Access Credentials;
2.2.6. Input, upload, transmit, or otherwise provide to or through the Website and Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
2.2.7. Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Website and Services, or our provision of services to any third party, in whole or in part;
2.2.8. Access or use the Website and Services for purposes of competitive analysis of the Website and Services, including, but not limited to, the development, provision, or use of a competing software service or product, or any other purpose that is to our detriment or commercial disadvantage;
2.2.9. Use the Website and Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or violates any applicable law; or
2.2.10. Make available any part of the Website and Services in any medium on any third party service or public forum in violation of these Terms and the intellectual property rights protected herein, including, but not limited to, any partial or full simulations, quiz questions and answers, lab manuals, or other content.
2.3. Reservation of Rights. We reserve all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you, or any third party, any intellectual property rights or other right, title, or interest in or to the Services.
2.4. Suspension. Notwithstanding anything to the contrary in these Terms, we may temporarily or fully suspend your access to any portion or all of the Website and Services if: (a) we reasonably determine that: (i) there is a threat or attack on any of the Website and/or Services; (ii) your use of the Website and/or Services disrupts or poses a security risk to the Website and/or Services or to any other customer or vendor of ours; (iii) you are using the Website and/or Services for fraudulent or illegal activities; or (iv) our provision of the Website and/or Services to you is prohibited by applicable law; (b) any vendor of ours has suspended or terminated ours access to or use of any third-party services or products required to enable your access to the Website and/or Services; or (c) your failure to pay any applicable Fees in accordance with Section 5.1 (any such suspension described in subclause (a), (b), or (c), a “Service Suspension”). We shall use commercially reasonable efforts to provide written notice of any Service Suspension to your and to provide updates regarding resumption of access to the Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to the Website and/or Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of a Service Suspension.
2.6. Third Party Components. The Website and Services may contain, or rely upon, third party components, which may include various open source software components originating from the open source software communities, which are subject to additional restrictions (“Third-Party Software”). Any Third-Party Software in the Website and Services are distributed by us in accordance with the applicable Third-Party Software’s license terms and conditions. In the event of a conflict between an applicable Third-Party Software’s license and the terms of these Terms, the Third-Party Software component’s license will take precedence (but solely with respect to the Third-Party Software component(s) to which the license relates). By using the Website or any of the Services, you agree to be bound by the additional terms and conditions of all applicable Third-Party Software (as applicable). If you do not agree to be bound to such Third-Party Software license, you must immediately discontinue use of the Website and/or Services. Where the specific license terms of the Third-Party Software component entitle you to receive a copy of the source code, that source code shall be made available upon your written request made to us.
2.7. Third-Party Sites, Products, Services, and Links. The Website and Services may include links or references to other web sites or services solely as a convenience to you (“Third-Party Sites”). We do not endorse any such Third-Party Sites, or the information, materials, products, or services contained on or accessible through Third-Party Sites. ACCESS AND USE OF THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES ON OR AVAILABLE THROUGH THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK.
2.8 Virtual Reality Scenario Sharing. You may use the UbiSim Software to share any virtual reality scenario that you develop with the wider community of our users who have access to the UbiSim Software, including Custom Scenarios (a “Community Scenario”). The decision to share a Community Scenario is a permanent one made by you; once shared, you cannot decide to cease sharing a Community Scenario. When the Community Scenario is shared and made available to the wider community of our users, other users may use or modify the Community Scenario at their own discretion, without any input by you. Once shared, a Community Scenario will always be attributed to you as the creator of the Community Scenario. We will make available to our users a set of guidelines that any Community Scenario must meet in order to be shared with the wider community of our users. We reserve the right to: (i) decide, in our sole discretion, whether your Custom Scenario may become a Community Scenario; (ii) with your consent, amend the Community Scenario prior to sharing it with the wider community of our users who have access to the UbiSim Software; and (iii) take down, in our sole discretion, any Community Scenario that is being shared with the wider community of our users who have access to the UbiSim Software. For greater certainty, if we take down a Community Scenario, it remains available to you as a Custom Scenario for your own use.
2.9 Your Videos. We will delete any videos generated by you from your use of the UbiSim Software, including Custom Scenarios, upon expiration of your purchased access or earlier terminated in accordance with these Terms.
3. User Responsibilities.
3.1. General. You are responsible and liable for all of your uses of the Website and Services, directly or indirectly, whether such access or use is permitted by or in violation of these Terms.
3.2. You shall be responsible for obtaining, maintaining, and securing any User Systems, including, but not limited to, your account, passwords (including, but not limited to, administrative and user passwords) and files, and for all uses of your account or the User Systems, with or without your knowledge or consent.
4. Services Support.
Subject to these Terms, we shall use commercially reasonable efforts to make the Services available in accordance with the service levels, and provide the technical support, set out below:
4.1. Scheduled Downtime. We will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 7AM and 10AM GMT; and (b) give Users at least twenty-four (24) hours prior notice of all scheduled outages of the Services.
4.2. Support Services. The Services include our standard customer support services (“Support Services”) available at https://help.labster.com/en (or a successor website address). We will use commercially reasonable efforts to resolve reported issues within a reasonable period of time.
4.3. Data Backup. NOTWITHSTANDING OUR OBLIGATIONS SET FORTH IN SECTION 7.1 OF THESE TERMS, WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF USER DATA.
4.4. Minimum System Requirements. Operating the Services requires minimum system requirements detailed at: https://help.labster.com/en/articles/1077008-what-are-the-minimum-system-requirements-for-labster-simulations. Such requirements may be updated from time-to-time as provided for at such, or its successor, page.
5. Fees and Payment.
5.1. Fees. If applicable to your use of the Services, you shall pay to us any and all fees in advance of your use of the Services (“Fees”) in the currency set forth at the time of purchase. All amounts payable to us under these Terms shall be paid by you to us in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law). We may increase any Service Fees no more than once annually after the first Access Period.
5.2. Credits and Refunds. Except as otherwise explicitly set out in these Terms, or as may be required by any Labster third-party service provider, no cancellation, credit, roll over, or refund of any Fees paid for your license to the Services will be provided.
5.3. Taxes. All Fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. Except as otherwise required by applicable law, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
6. Data Privacy.
6.2. FERPA and Educational Records. The Parties acknowledge that: (a) User Data may include personally identifiable information from education records that are subject to the Family Educational Rights and Privacy Act (“FERPA”, and such information, the “FERPA Records”); and (b) to the extent that User Data includes FERPA Records, we will be considered a “School Official” with “legitimate educational interests” (as those terms are used in FERPA and its implementing regulations) and will comply with FERPA accordingly. To the extent applicable, we will comply with FERPA and will not access or make any disclosures of student educational records to third parties without prior written notice to, and consent from, the User’s educational institution, or as otherwise provided by law. Exclusive of any written agreement, User Data shall remain the exclusive property of the User and subject to the restrictions of FERPA, and such educational institution may disclose Personally Identifiable Information of students, as that term is defined under FERPA, to us for the limited use in connection with providing the Services. We will not disclose student Personally Identifiable Information to third parties or use it for any purpose other than performing its obligations hereunder.
6.3. COPPA; Minors; and Parental or Legal Guardian Consent. Subject to the Children’s Online Privacy Protection Act (“COPPA”), FERPA, and other applicable privacy laws, if you are not a Student User and you are under the age of thirteen (13) (“Child User”), you may not create or register an account for the Services without the consent and approval from your parent or legal guardian, which may take the form of an account created by such parent or legal guardian (“Guardian User”). If you are not a Student User and you are under the age of eighteen (18), you represent that your parent or legal guardian has reviewed and agreed to these Terms on your behalf. Except for Student Users, a Child User that begins the registration process without a parent or legal guardian may have the registration process restricted until a parent or legal guardian approves, assumes responsibility for the Child User account, or creates a Guardian User account. For the avoidance of doubt, if you are a Student User, your educational institution is responsible to obtain your parent’s or legal guardian’s consent for you to use the Services, or the educational institution has complied with an exemption to parental or legal guardian consent requirements under applicable law. A Child User will only be permitted to use the Services for so long as we reasonably believe that such access has been consented to by the Child User’s parent or legal guardian.
6.4. No Waiver. We will not require any Users to waive any privacy rights (including, but not limited to, under FERPA, the GDPR, or CCPA) as a condition for receipt of any educational services, and any attempt to do so will be void.
7.1. Labster’s Obligations. We will employ commercially reasonable security measures (including, but not limited to, password protection and encryption) that are intended to prevent access to the Website, Services, User Data, and/or information by unauthorized persons. We will establish and maintain such other commercially reasonable safeguards (including, but not limited to, virus protection safeguards) against the destruction, loss, or alteration of the Website, Services, and User Data. We, or our agents, will utilize security systems for the Website and Services that provide notification in the event of, but not limited to, fire, improper entry, and environmental systems failure. Upon our (or our agent’s) discovery of any security breach, intrusion, or other event giving rise to the actual or potential unauthorized access, destruction, loss, or alteration of User Data, we shall notify your thereof without undue delay, and in any event in accordance with applicable law, and shall take such commercially reasonable action as may be appropriate to halt such unauthorized access, destruction, loss, or alteration.
7.2. User Control and Responsibility. You have, and will retain, sole responsibility for: (a) all User Data, including its content and use; (b) all information, instructions, and materials provided by or on your behalf in connection with the Website and Services; (c) User Systems; (d) the security and use of your Access Credentials; and (e) all access to and use of the Website and Services directly or indirectly by or through the User Systems or your Access Credentials, with or without your knowledge or consent.
7.3. User Access. You shall employ, and are responsible for your compliance with, all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Website and Services; and (b) control the content and use of User Data, including the uploading or other provision of User Data for processing by the Website and Services.
8. Intellectual Property Ownership; Feedback.
8.1. Labster Intellectual Property Rights. You acknowledge that in providing the Website and Services, we utilize the Labster Materials which are covered by intellectual property rights owned or licensed by us. Other than as expressly set forth in these Terms, no license or other rights in the Labster Materials are granted to you, and all such rights are hereby expressly reserved. All right, title, and interest in and to the Labster Materials, including all intellectual property rights therein, are and will remain with us and, with respect to Third-Party Software, the applicable third-party licensors own all right, title, and interest, including all intellectual property rights therein. You obtain no right, license, or authorization with respect to the Website or any of the Services except as expressly set forth in Section 2.1 or the applicable Third-Party Software license. All other rights in and to the Website and Services are expressly reserved by us. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to us an assignment of all right, title, and interest in and to the Aggregated Statistics and any User Created Content, including all intellectual property rights relating thereto.
8.3. Feedback. If you send or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Labster Materials, including, but not limited to, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, including any User Created Content (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You hereby assign to us, on your behalf, all right, title, and interest in, and we are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, we are not required to use any Feedback.
9. Representations and Warranties; and Warranty Disclaimer.
9.1. User Representations and Warranties. You warrant, represent and agree that you will not provide any User Data or otherwise use the Website and Services in a manner that: (a) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (b) violates any international, federal, state or local law, statute, ordinance or regulation or which would render us in violation of any applicable laws or regulations, including without limitation, applicable privacy laws such as GDPR and CCPA; (c) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (d) jeopardizes the security of your account or the Website and Services in any way, such as allowing someone else access to your account or password or submitting User Data that contains viruses. Additionally, you represent, warrant and agree that: (w) you possess all rights necessary to provide your User Data and grant us the rights in these Terms; (x) you will comply with all applicable laws in connection with your use of the Website and Services; (y) if you are School Personnel, you understand that you are solely responsible for providing notices and obtaining consents required by applicable law for Student Users to use the Website and/or Services or to provide User Data, including compliance with the applicable provisions of FERPA and COPPA; and (z) if you are a parent or legal guardian, or a Guardian User, you understand that you are solely responsible for consenting on behalf of your Child User, as required by applicable law, for such Child User to use the Website and/or Services or to provide User Data. You also warrant and represent that you have not been previously suspended or removed from the Website and/or Services by us, and that your registration and your use of the Website and/or Services is in compliance with any and all applicable laws.
9.10. ACCESS TO THE WEBSITE AND SERVICES IS PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”, AND WE HEREBY DISCLAIM ALL GUARANTEES, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES WITH RESPECT TO THE WEBSITE AND SERVICES. WE MAKE NO WARRANTY OF ANY KIND THAT THE WEBSITE AND SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. WE STRICTLY DISCLAIM ALL WARRANTIES WITH RESPECT TO ANY STANDALONE THIRD-PARTY SOFTWARE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEBSITE AND SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
10. Your Indemnification Obligations.
You agree, to the extent permissible under applicable law, to indemnify, defend, and us and our Affiliates, successors, contractors, officers, directors, employees, agents and our third-party suppliers, licensors, and partners, harmless from and against all losses, damages, liabilities, demands, judgments, settlements, costs, and expenses of any kind (including legal fees and expenses), from any claim or demand made by any third-party relating to or arising out of: (i) your access to, use or misuse of the Website and Services; (ii) your breach or alleged breach of these Terms, or any violation of these Terms; (iii) any breach of the representations, warranties, and covenants made herein, whether by you or by any Child User or Student User whose account you have approved as a parent or legal guardian, a Guardian User, or School Personnel; (iv) your failure to comply with applicable law (including any failure to obtain or provide any necessary consent or notice); or (v) the infringement by you or any third-party using your account of any intellectual property, privacy, or other right of any person or entity, including in connection with your User Data. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to fully cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
11. Limitation of Liability and Damages.
11.1. LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE UNDER, OR IN CONNECTION WITH, THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY OF THE WEBSITE OR SERVICES; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IF ANY APPLICABLE LAW OR AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN OUR LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
11.2. LIMITATION OF DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING YOUR USE OF THE WEBSITE AND SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, AND OTHERWISE, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT PAID BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (b) ONE HUNDRED UNITED STATES DOLLARS OR EUROS, DEPENDING ON THE LABSTER ENTITY.
11.3. BASIS OF BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE WEBSITE AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE THE WEBSITE AND SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
12. Access Period and Termination.
12.1. Access Period. As applicable to the Services, the “Access Period” is the period of time that you will be licensed to access and use the applicable Services in accordance with these Terms. Each Access Period shall be renewed automatically upon the expiration thereof and renew for the same length of time (“Renewal Access Period”).
12.2. Termination. In addition to any other express termination right set forth in these Terms, either Party may terminate these Terms as they apply to the Services, effective upon written notice to the other Party, if the other Party materially breaches these Terms (except for breaches subject to the terms of Section 4), and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. In the event of your termination of the Services due to our uncured breach, you will receive a prorated refund of any prepaid but unused Fees from the effective date of termination through the end of the applicable Access Period.
12.3. Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms in relation to your use of the Services: (a) you shall immediately discontinue use of the Services; and (b) we will promptly return, delete, or destroy all User Data we are not otherwise legally required or permitted to maintain.
13.1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) will be provided to you via email to your registered email address, notice in your user account dashboard, or posting on our Website.
13.2. Force Majeure. In no event shall we be liable to you, or be deemed to have breached these Terms, for any failure or delay in performing our obligations hereunder, if and to the extent such failure or delay is caused by any circumstances beyond our reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, epidemic or pandemic, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
13.3. Modification. These Terms may be updated from time-to-time by us at our sole discretion and made available https://www.labster.com/terms-of-service-and-use/ or at a successor or similar web page.
13.4. Waiver. No waiver by us of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by one of our authorized representatives. Except as otherwise set forth in these Terms: (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.5. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, these Terms shall be modified so as to implement as originally contemplated to the greatest extent possible.
13.6. Governing Law, Jurisdiction, Mediation, and Arbitration; Class Waiver.
13.6.1. The rights and obligations of the Parties under these Terms shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods, but instead shall be governed by and construed under the laws of, without regard to its conflict of laws rules:
220.127.116.11. If the Labster contracting entity, as described in Section 1.9, is Labster Inc., then the laws of the State of New York, USA with such Claims to be resolved solely in the appropriate courts of New York, New York, USA and the Parties hereby expressly consent to such jurisdiction, forum, and venue of such courts;
18.104.22.168. If the Labster contracting entity, as described in Section 1.9, is Labster ApS, then the laws of Denmark, with such Claims to be resolved solely in the appropriate courts of Copenhagen, Denmark and the Parties hereby expressly consent to such jurisdiction, forum, and venue of such courts; or
13.6.2. To the extent permitted by applicable law, the Parties agree to resolve all Claims solely by confidential and binding arbitration in the applicable jurisdiction before a single nationally recognized arbitrator or arbitration service (“Arbitrator”), which, in any such instance, will be chosen by us in the applicable jurisdiction either with: (a) the American Arbitration Association or JAMS; or (b) the International Chamber of Commerce International Court of Arbitration, and for you on an individual basis only (i.e., you may not bring a claim in arbitration or in court as a class action or in a representative capacity, nor participate as a member in any such class or representative action). This Section 13.6.2 is a written agreement to arbitrate governed by the applicable laws of the designated jurisdiction. The Parties agree to pay their respective attorneys’ fees, and further agree that any Claim and/or arbitration (including the materials, proceedings, and existence thereof) are Confidential Information.
13.6.3. Notwithstanding the foregoing, you acknowledge and agree that a breach or threatened breach by you of any of its obligations under Section 2.2, would cause us irreparable harm for which monetary damages would not be an adequate remedy, and you agree that, in the event of such breach or threatened breach, we will be entitled, prior to any request for arbitration, to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.7. Assignment. You may not assign any of your rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise. Any purported assignment or delegation in violation of this Section will be null and void.
13.8. Export Regulation. You shall comply with all applicable federal and international laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export, re-export, or use of the Website and Services or any User Data outside the EU, UK, and US.
13.9. Public Announcements. We may, without your prior approval, include your name, solely if you are an institution or entity and not an individual, and solely in our “matter-of-fact” lists of current or former customers and users in promotional, marketing, and other materials, but, for the avoidance of doubt, such use shall not make an inference of any endorsement unless your prior written consent is obtained.
13.10. Accessibility of the Services. We agree to continue to use reasonable commercial efforts to provide the Website and Services in an accessible manner as described at https://www.labster.com/accessibility/, which may be updated from time-to-time at our sole discretion. There may be certain features which enable an User to create or manipulate content, and for the avoidance of doubt, such content may not be accessible unless performed in accordance with Labster guidelines. Notwithstanding the foregoing, Labster shall have no responsibility for any content added, manipulated, or otherwise by an User which no longer complies with the accessibility provisions herein.
13.11. Titles and Headings; Clerical Errors. The title and section headings of these Terms are inserted for convenience only and are not intended to affect the meaning or interpretation of these Terms. Clerical errors are subject to our correction.
13.12. Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties as to your access and use of the Website and Services and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral.
13.13. Survival. As related to the Services, all provisions which by their nature and context impose continuing obligations on Party or both Parties shall survive any termination or expiration of these Terms.