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Terms and Conditions Governing LabWare SaaS, Cloud Hosting, Support, and Related Services
This Cloud Services Agreement, effective on the date the second Party thereto executes a LabWare Quotation regarding a Cloud Service, (the “Effective Date”), is entered into by and between LabWare, further identified on the Quotation, (“LabWare”) and Customer placing the order, as referenced and identified on the Quotation (“Customer”). LabWare and Customer are sometimes referred to herein collectively as the “Parties” and individually as a “Party”.
“Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise.
“Agreement” means this Cloud Services Agreement, including all SLAs, SOWs and other exhibits and schedules attached hereto, all of which are expressly incorporated herein by reference, and any other document or agreement incorporated herein by reference.
“Application” means a software program, application or solution or other technology owned or licensed by LabWare, including any software agent or tool used to facilitate Customer’s access to or operation of any Cloud Service.
“Authorized User” means any Person to whom Customer authorizes or otherwise grants access to use a Cloud Service, which may include without limitation any Representative of: (i) Customer; (ii) Customer’s Affiliates; and (iii) the Business Partners of Customer or Customer’s Affiliates.
“Business Partner” means any Person who requires use of a Cloud Service in connection with the business operations of Customer and/or its Affiliates. These may include, but are not limited to, customers, distributors, service providers and/or suppliers of Customer or its Affiliates.
“Cloud Service” shall mean any distinct, subscription-based, internet-accessible Application or other service hosted by LabWare or its Representative and described in an SOW.
“Confidential Information” means all information disclosed by a Party or its Representatives (the “Disclosing Party”), to the other Party or its Representatives (the “Receiving Party”), regardless of whether such information is disclosed in writing, electronically, orally or visually, including without limitation: (1) any trade secret information; (2) any information of a technical nature, such as, but not limited to, software, software configurations, user guides or manuals, documentation, methods, know-how, materials, processes, discoveries, machines, devices, inventions, and similar items or research projects; (3) any information of a business nature such as, but not limited to, information about products, services, costs, purchasing, supplies, prices, profits, inventories, markets, sales, financial information, marketing studies and plans, and other business affairs and methods not readily available to the public; and (4) any information pertaining to future developments such as, but not limited to, the Disclosing Party’s objectives, strategic plans, sales strategies, budgets, research and development projects, and marketing efforts and plans; provided, however, that Confidential Information shall not include any information that (i) the Receiving Party can demonstrate was in the possession of the Receiving Party prior to disclosure by the Disclosing Party, (ii) is now or hereafter becomes generally available to the public other than by violation of this Agreement, (iii) is disclosed to the Receiving Party by a third party having no obligation to the Disclosing Party, or (iv) is developed by the Receiving Party without reference in any manner to the Confidential Information of the Disclosing Party.
“Consulting Services” means consulting, support or other professional services, including, without limitation, setup, implementation, configuration, custom development and training, provided by LabWare to Customer in connection with any Cloud Service as described in an Statement of Work. Services shall not include any ongoing development and support of LabWare Software or the Cloud Services, nor maintenance, which includes but is not limited to new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of the LabWare Software or the Cloud Services.
“Customer Content” means (i) any content, materials, data and information that Authorized Users enter into, store in, or derive from the use of any Cloud Service (including any Customer-specific reports), and (ii) any other content, data, information and materials otherwise provided by a Customer Representative to LabWare in connection with any LabWare Product or Consulting Service; provided, however, Customer Content will not include any LabWare Confidential Information.
“Data Breach” means a confirmed accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or unauthorized third-party access to Confidential Information or Personal Data.
“Data Protection Law” means the law(s) of any country or state pertaining to the personal data of individuals.
“Deliverables” means any tangible work product developed by LabWare, either solely or jointly with others, in connection with work performed under this Agreement for and/or on behalf of Customer, whether as individual items or a combination of components. By way of example only, a Deliverable may consist of a plan, report, design, methodology, process, specification or software configuration.
“Intellectual Property” means any patents, patent applications, patent disclosures, trademarks (registered and unregistered), copyrights, copyrightable works, trade secrets or similar protectable intellectual property.
“LabWare Cloud Support” means the Network Operations Center (NOC).
“LabWare Documentation” means any user guides, online assistance, training materials, and other documentation provided or made available by LabWare to Customer regarding the use or operation of any Cloud Service or Consulting Services.
“LabWare Materials” means any documents, information, inventions, methods, processes, procedures, technology, know-how or other ideas or materials developed by LabWare (independently or with Customer’s cooperation) in the course of performance under this Agreement, including in the delivery of any Cloud Service, Consulting Service or support service; provided, however, that LabWare Materials do not include the Customer Content or Customer Confidential Information.
“LabWare Products and Services” means any product or service provided by LabWare hereunder, including Cloud Services, Consulting Services, LabWare Documentation and LabWare Materials.
“Person” means any individual, corporation, partnership, limited liability company, trust, government, governmental or regulatory organization or authority, and any other entity, organization or association.
“Personal Data” means data relating to an identified or identifiable Person to the extent that such information is protected as personal data under applicable Data Protection Law.
“Policies” means any operational guidelines and policies applied by LabWare to provide and support the Cloud Services as incorporated in an SOW, SLA or LabWare Documentation.
“Quotation” means Schedule I to this Agreement, the document prepared by LabWare, identifying the LabWare company and the Customer company, as well as stating the details of the products and/or services to which Customer is subscribing.
“Recovery Point Objective” means the maximum period of time in which data may be lost from a provided Cloud Service due to a major incident. Recovery point is determined by the timestamp of last backup or last database log file that is successfully restored or applied to the disaster recovery environment.
“Recovery Time Objective” means the maximum period in which a provided Cloud Service must be restored after a major incident. Recovery time is determined by the time elapsed between the declaration of a disaster and restoration of provided Cloud Service.
“Representative” means, with respect to a Party, such Party’s Affiliates, employees, licensors, contractors, and other agents, including, with respect to Customer, Customer’s Authorized Users.
“SLA” means Exhibit 1, a Service Level Agreement that sets forth the system availability and other related terms and conditions for a particular Cloud Service to which Customer has subscribed.
“Statement of Work (or ‘SOW’)” means an Agreement between LabWare and Customer which identifies the particular Cloud Service Customer has Subscribed and any Consulting Service to be provided by LabWare in connection with onboarding such Cloud Service or subsequent additional Consulting Services to be provided to a Customer who has already subscribed to a particular Cloud Service.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and other good and valuable consideration, the Parties hereby agree as follows:
IN RELATION TO ALL PERSONAL DATA PROVIDED BY OR THROUGH CUSTOMER TO LABWARE, CUSTOMER WILL BE RESPONSIBLE AS SOLE DATA CONTROLLER FOR COMPLYING WITH ALL APPLICABLE DATA PROTECTION OR SIMILAR LAWS AND LAWS THAT REGULATE THE PROCESSING OF PERSONAL DATA AND SPECIAL CATEGORIES OF DATA. CUSTOMER AGREES TO OBTAIN ALL NECESSARY CONSENTS AND MAKE ALL NECESSARY DISCLOSURES BEFORE INCLUDING PERSONAL DATA IN CUSTOMER CONTENT AND USING ANY CLOUD SERVICE. CUSTOMER CONFIRMS THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ANY PERSONAL DATA THAT MAY BE CONTAINED IN CUSTOMER CONTENT. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE PURPOSES AND MEANS OF PROCESSING PERSONAL DATA BY LABWARE UNDER THIS AGREEMENT, INCLUDING THAT SUCH PROCESSING ACCORDING TO CUSTOMER’S INSTRUCTIONS WILL NOT PLACE LABWARE IN BREACH OF APPLICABLE DATA PROTECTION LAWS.
6. OWNERSHIP RIGHTS
6.1. LabWare Ownership. Other than the limited access and use rights granted to Customer in Section 1, LabWare is not granting to Customer any other access, use or ownership rights in and to any LabWare software, Applications, Products or Cloud Services. LabWare and its applicable Representatives shall own all right, title and interest in and to all Cloud Services, LabWare Documentation, LabWare Materials and all other Deliverables provided by LabWare or its Representatives under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.
6.2. Machine Learning and Artificial Intelligence. Customer shall not upload to, process with, disclose to or use to train, any public or private machine learning or artificial intelligence model with any LabWare software, Applications, Products, Cloud Services, LabWare Documentation, LabWare Materials, Deliverables or Confidential Information of LabWare without the expressed written permission of LabWare in advance.
6.3. Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against LabWare or its Representatives any rights, or any claims of any rights, in any Cloud Service, LabWare Materials, LabWare Documentation, or Consulting Service.
6.4. Customer Ownership. Notwithstanding Section 6.1, Customer retains all rights in and related to Customer Content.
7. FEES, PAYMENT AND TAXES
7.1. Invoicing and Payment. LabWare will invoice Customer for a Cloud Service and any related Consulting Service as specified in the applicable SOW. All invoices are due and payable within thirty (30) days from the date of the invoice (the “Invoice Due Date”).
7.2. Fees and Taxes. LabWare’s fees for Cloud Services and Consulting Services do not include any applicable taxes or governmental fees. Customer is responsible for any and all taxes or fees assessed by any taxing or governmental authority relating to any Cloud Service or Consulting Service, other than taxes based on the income of LabWare. LabWare may (but shall not be obligated to) to include any such taxes or fees in its invoices if applicable law requires LabWare to collect and remit such amounts to any taxing or governmental authority. Customer shall indemnify and defend LabWare from and against any and all claims relating to taxes and fees owed by Customer.
7.3. Payment Processing. Customer may choose to use a third-party processing system for the purpose of issuing purchase orders or invoices, payments or other similar services. If Customer chooses to use such a system, any fee or cost incurred will be borne by Customer exclusively. Any fee or cost incurred by LabWare as the result of Customer using such a system will be reimbursed by Customer. Upon incurring any fee or cost for using a third-party system, LabWare will submit an invoice to Customer, which shall be paid according to the terms stated above.
7.4. Expenses. Customer will reimburse LabWare for its reasonable, out-of-pocket travel and related expenses incurred in performing any Consulting Services. LabWare shall notify Customer prior to incurring any such expenses. LabWare shall comply with Customer’s travel and expense policy if made available to LabWare prior to the required travel.
8. CONFIDENTIALITY
8.1. Obligation to Maintain Confidentiality. With respect to all Confidential Information of the other Party, LabWare and Customer each agree to:
Use commercially reasonable efforts to maintain the same in confidence;
Subject to subsection d. below, not disclose the same to any third party without prior authorization from the other Party;
Use the same only for the purposes of exercising its rights or performing its obligations under this Agreement;
Limit access to such Confidential Information to its Representatives who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such Confidential Information against disclosure with at least the same degree of care as with their own Confidential Information; and
8.2. Expiration of Duty. Each Party’s duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Confidential Information hereunder or five (5) years after Customer last uses any Cloud Service, whichever occurs later, except for any Confidential Information that is considered a trade secret under 18 U.S. Code § 1839, which Confidential Information shall remain confidential for as long as that information remains a trade secret.
8.3Disclosure Required by Law. A Party shall not be liable for a breach of its confidentially obligations hereunder if such Party discloses Confidential Information pursuant to a legal requirement or an order of any a governmental or regulatory agency; provided, however, that LabWare or Customer, as the case may be, will provide written notice of such required disclosure to the other Party and take reasonable steps to allow the other Party to seek to protect the confidentiality of the information required to be disclosed.
9. WARRANTIES
9.1. Compliance with Law. Each Party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
a. In the case of LabWare, the operation of LabWare’s business as it relates to the Cloud Services and Consulting Services, and
b. In the case of Customer, Customer Content and Customer’s use of the Cloud Services.
9.2. Warranty. LabWare warrants that (a) no Cloud Service will infringe the Intellectual Property of any third party, (b) it will provide the Cloud Services and Consulting Services in a professional manner consistent with general industry standards, (c) each Cloud Service will perform substantially in accordance with the applicable SOW and the LabWare Documentation, and (d) any Consulting Services will be in compliance with all material requirements and specifications set forth in the applicable SOW. Notwithstanding the foregoing, LabWare’s warranty shall not apply if any Cloud Service is not used in accordance with this Agreement or the LabWare Documentation or if any non-conformity is caused by Customer, its Representatives or by any product or service not provided by or through LabWare.
9.3 Disclaimer.
a. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, LABWARE MAKES NOT OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH ANY PRODUCTS OR CLOUD SERVICE OR CONSULTING SERVICES PROVIDED UNDER THIS AGREEMENT.
b. LABWARE DOES NOT GUARANTEE THAT ANY CLOUD SERVICE OR CONSULTING SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT LABWARE WILL CORRECT ALL CLOUD SERVICE OR CONSULTING SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT LABWARE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT A CLOUD SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NEITHER LABWARE NOR ANY OF ITS REPRESENTATIVES OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL LABWARE OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF COMPANY’S OR ANY AUTHORIZED USER’S DATA, FILES, OR PROGRAMS.
c. CUSTOMER AGREES THAT IT IS NOT RELYING ON DELIVERY OF FUTURE FUNCTIONALITY, PUBLIC COMMENTS OR ADVERTISING OF LABWARE OR PRODUCT ROADMAPS IN OBTAINING SUBSCRIPTIONS FOR ANY CLOUD SERVICE.
10. INDEMNIFICATION
10.1. Indemnification by LabWare. LabWare shall indemnify Customer against all losses, damages and expenses incurred by Customer in connection with a successful claim by a third party against Customer that any Cloud Service infringe the Intellectual Property of such third party; provided, that LabWare shall have no liability for any claims or losses based on (i) Customer Content, (ii) modification of any Cloud Service not authorized by LabWare, or (iii) use of any Cloud Service other than in accordance with the LabWare Documentation and this Agreement. If a third party alleges that any Cloud Service infringes the Intellectual Property of such third party, LabWare may, at its sole option and expense, procure for Customer the right to continue use of the Cloud Service, modify the Cloud Service in a manner that does not materially impair the functionality, or terminate the applicable SOW and repay to Customer any amount paid by Customer with respect to such Cloud Service following the termination date.
10.2. Indemnification by Customer. Customer shall indemnify and defend LabWare and its Representatives against any losses arising out of a claim by a third party (including any regulatory or governmental agency) (i) alleging that any Customer Content infringes the Intellectual Property of such third party or (ii) in connection with Customer’s violation of the DPA or any data protection law, or (iii) any action by Customer that places LabWare in violation of any data protection law.
11. LIMITATION OF LIABILITY
11.1. Liability Cap. Subject to Section 11.2, and except where liability cannot be limited by law, Customer agrees that LabWare’s aggregate liability to Customer hereunder shall be limited to the fees paid by Customer for the current Subscription Term for the applicable Cloud Service or applicable SOW, giving rise to such liability.
11.2. Exclusion of Damages. NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR FOR LOSS OF PROFITS OR GOODWILL OR WORK STOPPAGE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS
11.3. Attorney Fees. With respect to any dispute among the Parties arising out of or relating to this Agreement, the reasonable attorneys' fees and costs incurred by the prevailing Party in connection with such dispute shall be paid by the other Party or Parties to such dispute. The limit of liability shall not apply to these fees and/or costs.
12. TERM AND TERMINATION
12.1 Term. The initial subscription term of this Agreement is defined in Schedule 1, the Quotation, and shall commence on the Effective Date. The initial subscription term shall continue for the period of time stated in Schedule 1, unless terminated early in accordance with the terms hereof.
12.2. Termination by LabWare. This Agreement may be terminated by LabWare as follows:
b. By giving thirty (30) days’ written notice of termination to Customer if Customer has breached a material term of this Agreement; provided, that, if such breach is capable of cure and Customer cures such breach within such thirty (30) day period to the reasonable satisfaction of LabWare, this Agreement shall not terminate;
c. By giving written notice of termination to Customer if LabWare has provided two notices pursuant to Section 12.2.b. in any twelve (12) month period, regardless of whether Customer has cured any applicable breach;
d. By giving written notice of termination to Customer if Customer transfers, by operation of law or otherwise, or attempts to transfer, without LabWare’s written consent, any interest in, or right, privilege or obligation under this Agreement;
e. By giving written notice of termination to Customer if there is a material change, however accomplished, in the direct or indirect ownership or operating management of Customer without LabWare’s prior written consent which, in the reasonable opinion of LabWare, impairs Customer’s ability to perform its obligations under this Agreement;
f. By giving written notice of termination to Customer if Customer becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Customer, or if a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of Customer, or if Customer makes an assignment for the benefit of creditors, or if Customer fails for any reason to function in the ordinary course of business; or
g. By giving written notice of termination to Customer if Customer defaults under the terms of any other agreement it has with LabWare or any of its Affiliates.
12.3. Termination by Customer. This Agreement may be terminated by Customer as follows:
12.4. Effect of Termination. Upon termination of this Agreement, LabWare shall immediately cease providing all Cloud Services and Consulting Services, and all rights granted to Customer under this Agreement, including under each SOW, shall automatically and immediately terminate. Termination of this Agreement or an SOW shall not relieve Customer of its obligation to pay for any Cloud Service or Consulting Service through the date of termination.
12.5. Survival. Sections 1.10, 2., 4.6., 5., 6., 7., 8., 9.3, 10., 11., 12.5, 12.7, 14.7, 14.10 and 14.11 will survive the termination of this Agreement.
12.6. Termination of a SOW. Notwithstanding the foregoing, an SOW may be terminated pursuant to Section 3.2.b. and may expire or be terminated in accordance with the terms and conditions set forth in such SOW, without terminating this Agreement.
12.7. Export of Customer Data. Upon termination or expiration, or upon request for another valid reason, customer entered data export services can be provided by LabWare for a fee based on volume of applicable data.
13. INDEPENDENT CONTRACTOR
13.1. Contractor Relationship. The Parties expressly understand and agree that each Party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its Representatives and its labor costs and expenses arising in connection herewith. Neither Party nor its Representatives are the representative of the other Party for any purpose, and neither Party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other Party for any purpose whatsoever.
13.2. LabWare Employees. LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Customer’s account that meet industry standards and qualifications.
13.3. Subcontractors and LabWare Implementation Partners. LabWare may use LabWare affiliates or LabWare subsidiaries to provide Cloud Services or Consulting Services under this Agreement. No provision of this Agreement shall be construed to create a contractual relationship between any LabWare contractor and Customer or to create an obligation to pay or be responsible for the payment of any monies that may be due to any such subcontractor from LabWare. LabWare is responsible for breaches of this Agreement caused by its contractors.
14. MISCELLANEOUS
14.1. Non-Exclusive Service. Customer acknowledges that all Cloud Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict LabWare’s ability to provide any Cloud Services or other technology, including any features or functionality first developed for Customer, to other parties.
14.2. Severability. If any word, phrase, clause, section, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, section, article or provision shall be modified or amended to; (i) make this Agreement valid and enforceable; and (ii) continue to reflect the original intent of the parties to this Agreement. In the event any word, phrase, clause, section, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable and cannot otherwise be modified or amended, the remainder of this Agreement shall remain in full force.
14.3. No Waiver. A waiver of any breach of this Agreement is not deemed a waiver of any other breach.
14.4. Signatures. Electronic signatures that comply with applicable law are deemed original signatures. This Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.
14.5. Export Control. Customer acknowledges that LabWare Products and Services may be subject to United States’ or other governments’ export or import laws and regulations, and any use or transfer of the LabWare Products and Services must be permitted or authorized under those regulations. Customer is solely responsible for ensuring that any export or import of LabWare Products and Services to or from any jurisdiction complies with all applicable laws and regulations. Customer at its own expense shall indemnify, defend and hold LabWare free and harmless from any and all claims, damages, losses, costs, actions and expenses, including attorney’s and experts’ fees, arising from any breach of the foregoing obligation.
14.6. Audit. LabWare shall have the right, upon forty-eight (48) hour notice, to access Customer’s facilities to confirm Customer’s compliance with the terms of this Agreement. Each audit will be conducted at Customer’s place of business during Customer’s normal business hours. LabWare will pay for the cost of such audit. Audit information will only be used for purposes of this Agreement, including, without limitation, judicial enforcement of the obligations of Customer.
14.7. Notices.
Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified mail return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
If to LabWare: Address and Contact Information referenced in Quotation
If to Customer: Address and Contact Information referenced in Quotation
Notwithstanding the foregoing, Customer agrees to accept notice as required by Section 3.2 of this Agreement by electronic means.
14.8. Assignment. Without LabWare’s prior written consent, Customer may not assign or transfer this Agreement or any of its rights or obligations to any party. LabWare may assign this Agreement to any of its Affiliates upon written notice to Customer.
14.9. Force Majeure. Except with respect to Customer’s obligation to pay for any Cloud Service or Consulting Service, each Party will be excused from performance for any period during which, and to the extent that, such Party or any of its Representatives is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
14.10. Governing Law. This Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the location of the LabWare company identified in the Quotation, without reference to its conflicts of law principles. All disputes will be subject to the sole exclusive jurisdiction and venue of the courts located in the jurisdiction of the LabWare company identified in the Quotation. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to this Agreement. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.
14.11. Entire Agreement. This Agreement, including all exhibits and attachments, contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the Party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
14.12. Publicity. Neither Party may use the name of the other Party in publicity releases or advertising or for other promotional purposes without securing the prior written approval of the other Party hereto. This commitment does not apply to any correspondence, documents or publications utilized by either Party for distribution internally.
14.13. Precedence of English Language Version. This Agreement, including any attachments or exhibits, is written in English but may be translated or translatable to another language via LabWare.com. The English language shall be the governing language of this Agreement. In the event of any discrepancy, ambiguity, inconsistency, or conflict regarding the contents or the understanding between the English language version and the non-English language version of this Agreement, the terms of the English version shall prevail, control and take precedence herein.
14.14. Captions and Headings. The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation of construction of this Agreement.
Exhibit 1
LABWARE CLOUD SERVICES AGREEMENT
SERVICE LEVEL AGREEMENT
This Service Level Agreement (the “SLA”) is hereby incorporated by reference into the Cloud Services Agreement between LabWare and Customer (the “Agreement”). Capitalized terms used herein, but not otherwise defined herein, shall have the meanings assigned thereto in the Agreement.
1. SERVICE LEVEL AGREEMENT
1.1. System Availability. The Cloud Services for production environments subscribed for in a SOW will achieve System Availability of at least 99.5% during each calendar month of the term of this SLA, excluding scheduled maintenance. With respect to Cloud Services for non-production environments, LabWare will use reasonable efforts to keep non-production environments (e.g., dev, QA, etc.) running 24 hours per day and 7 days per week excluding scheduled maintenance.
If System Availability for a production environment is not met in any month, upon written request by Customer within 30 days after the end of the applicable month, a credit will be issued for the following month in an amount equal to 5% of the monthly fee for the affected Cloud Services for each 1% loss of availability below 99.5%, up to a maximum of 25% of the monthly fee for the affected Cloud Services. The remedy stated in this paragraph is Customer’s sole and exclusive remedy for interruption of Cloud Services and/or failure to meet System Availability. For the avoidance of doubt, the foregoing remedy applies only to Cloud Services for production environments.
2. SUPPORT SERVICES
2.1 The fees noted above include limited support services as described below. Support services are provided by email. LabWare support services are provided for Customer’s designated support contact(s).
2.2. Hours of Operation. The LabWare Cloud Support is operational 24 hours a day, seven days a week, excluding scheduled maintenance. Technical support for Severity 1 Problems shall be available 24 hours a day, seven days a week. Support for Severity 2 Problems and Severity 3 Problems shall be available during normal business hours. Response time for a trouble call is dependent on the severity level of the call.
2.3. Support Response Criteria
a. “Severity 1 Problem” means access to a Cloud Service is not available or accessible, there is an existing breach of security or Customer is unable to access Cloud Services due to LabWare specific application and/or communication failure. In the event of a Severity 1 Problem, LabWare will take the following actions:
b. “Severity 2 Problems” means a significant functional failure of a Cloud Service. In the event of a Severity 2 Problem, LabWare will take the following actions:
c. “Severity 3 Problems” means a minor functional failure of or issue with the Cloud Services. In the event of a Severity 3 Problem, LabWare will take the following actions:
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