Lab Compass, Inc.
Terms of Service
Effective Date: June 24, 2014
THE ORDER FORM(S) OF LAB COMPASS INC. (“LAB COMPASS” OR “WE”, “US”, “OUR”, OR SIMILAR DESIGNATIONS) AND THESE TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND LAB COMPASS CONCERNING YOUR USE OF THE SOFTWARE AND SERVICES. BY ORDERING OR OTHERWISE USING THE SOFTWARE AND SERVICES, YOU AGREE TO AND ACCEPT THIS AGREEMENT, INCLUDING THE SPECIFIC LIMITATIONS SET FORTH IN SECTIONS 2, 6, 8 AND 12-14. YOU MAY USE THE SOFTWARE AND SERVICES ONLY IN ACCORDANCE WITH THIS AGREEMENT. NO OTHER CONTRACT OR TERMS CONCERNING THE SOFTWARE OR SERVICES MAY BE CREATED IN ANY OTHER MANNER, INCLUDING BY MEANS OF YOUR PURCHASE ORDERS OR SIMILAR DOCUMENTS (EVEN IF SIGNED OR ACKNOWLEDGED BY LAB COMPASS), WHICH SHALL NOT MODIFY OR AMEND THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU SHALL NOT BE ENTITLED TO USE THE SOFTWARE AND SERVICES.
Lab Compass offers the Software only to individuals and legal entities (each a “Customer”) who have expressly ordered the Software for use by them and their Users, and agreed to use the Software pursuant to an order form and Lab Compass’s Terms of Service. You may only use the Software if you are an authorized User of a Customer.
1.1 The terms “you” or “your” refer to the individual, entity, or organization ordering the Software and Services as provided in the Order Form(s).
1.2 “Software” means the currently available Symport™ software which allows you and your Users to enter, collect and store healthcare data, including Protected Health Information, and related services and features, and any additions, modifications, or enhancements thereto.
1.3 “Services” means Lab Compass’s services to you, if any, as provided in the Order Form(s), which may include administrative setup, administrative and healthcare professional training, system integration, data storage, customization, and other such services as agreed between the parties.
1.4 “User” means any user of the Software, including Administrators, Healthcare Professionals, and Study Participants, who are authorize to use the Software under the terms of this Agreement.
1.5 “Documentation” means any instructions and policies provided to you or your Users by Lab Compass in connection with administration and use of the Software, Services, and related services, which may be amended by Lab Compass from time to time.
1.6 “Order Form(s)” means the order forms or other forms from Lab Compass (submitted in written form or online) evidencing the initial order for the Software and Services, and any subsequent order forms or other forms from Lab Compass, specifying, among other things, the initial term, the number of authorized Users, Services (if any) to be provided, the applicable fees, and such other charges and terms as agreed between the parties. Capitalized terms in the Order Form(s) not otherwise defined in the Order Form(s) are as defined in these Terms and Conditions.
1.7 “Healthcare Professionals” means your healthcare professionals, such as doctors, nurses, clinicians, researchers, and other healthcare professionals, authorized to use the Software under a Healthcare Professional account, under the terms of this Agreement and the EULA, to have access to the features and services available on the Software for Healthcare Professionals.
1.8 “Study Participants” means those Users who are authorized to use the Software under a Study Participant Account, under the terms of this Agreement, to have access to the features and services available on the Software for Study Participants.
1.9 “Administrators” means those Users designated by you as administrators who are authorized to use the Software under an Administrator Account, under the terms of this Agreement, to have access to the features and services available on the Software for Administrators.
1.10 “Data” means records, information, and data provided or entered by you or your Users, including PHI and PII, or otherwise collected by the Software, in the course of your and your Users’ use of the Software.
1.11 “Protected Health Information” or “PHI” means information that: (a) is created or received by a health care provider and relates to the (i) past, present, or future, physical or mental health or condition of an individual, (ii) provision of health care to an individual, or (iii) past, present, or future payment for the provision of health care to an individual; and (b) identifies or can reasonably be used to identify an individual. PHI is subject to Lab Compass’s “HIPAA Privacy and Security Policy” located at in the last tab on this page.
1.13 “Anonymized Data” means Data other than PHI or PII, or Data for which PHI and PII have been removed or modified so that the Data cannot be used to identify or cannot reasonably be used to identify an individual.
1.14 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended.
1.15 “Initial Term” means the initial period during which in the Software shall be made available to you and your Users. Unless a different term is specified in your Order Form(s), the Initial Term shall be for a period of one year.
- SOFTWARE LICENSE AND RESTRICTIONS.
2.1 Lab Compass hereby grants you and your Users a limited, personal, non-exclusive, non-transferrable, non-assignable, terminable license to internally use the Software during the Initial Term and any renewal term for personal, educational, and noncommercial purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Lab Compass. You are responsible for the use and misuse of the Software by your Users.
2.2 Neither you nor your Users shall: (i) modify, disassemble, decompile or reverse engineer the Software, except to the extent that such restriction is expressly prohibited by law; (ii) share, rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party or use the Software to provide time sharing or similar services for any third party; (iii) make any copies of the Software or content thereon; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software, features that prevent or restrict use or copying of any content accessible through the Software, or features that enforce limitations on use of the Software or such content; (v) delete the copyright and other proprietary rights notices on the Software; (vi) integrate the Software with any other software except as provided in the Documentation or as otherwise agreed between the parties in an Order Form; or (vii) engage in any fraudulent or illegal activity, violate any laws or third party rights, or violate the policies and procedures contained in the Documentation.
2.3 You and your Users may use the Software only for its intended purpose and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (v) attempt to gain unauthorized access to the Software or its related systems or networks.
2.4 Your Users will have log-in information, including a username and password. You and your Users are individually responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with your use of the Software. You shall: (i) notify Lab Compass immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Lab Compass immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by you or your Users; and (iii) not impersonate another User or provide false identity information to gain access to or use the Software.
2.5 You acknowledge and agree that your Users of the Software shall each be subject to terms set herein this binding document. LAB COMPASS RESERVES THE RIGHT TO DISABLE ANY USER’S USE OF OR ACCESS TO THE SOFTWARE WITHOUT NOTICE IF IT REASONABLY BELIEVES, IN GOOD FAITH, THAT SUCH USER’S USE OF OR ACCESS TO THE SOFTWARE IS IN FURTHERANCE OF SOME PROSCRIBED PURPOSE OR SCHEME OR A VIOLATION OF THIS AGREEMENT.
- NO MEDICAL ADVICE. Lab Compass does not give medical advice. The Software may provide helpful information to assist you in medical decision-making. The information and materials available through the Software are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for the Healthcare Professionals. You assume full risk and responsibility for the use of information you obtain from or through the Software. You will be solely responsible for the professional and technical services you provide.
- Third-Party Services. The Software may include certain third-party software and services. Your use of such software or services may require that you enter into separate subscription or licensing agreements with third-party vendors and suppliers. You agree to comply with and, upon request, execute such agreements as may be required for the use of such software or services.
- SERVICES. Lab Compass shall provide the Services, if any, to you as provided in your Order Form(s). Unless otherwise noted, all service fees are included with the service fees indicated on your Order Form(s). Any additional Services are subject to Lab Compass’s standard hourly rates for such Services (minimum 1/4 hour charge). Please see the Documentation for details.
- OWNERSHIP. All right, title, and interest in the Software, including, without limitation, all patents, copyrights, trade secrets, and other proprietary rights in the Software shall at all times remain solely and exclusively the property of Lab Compass (or its licensors, where applicable), whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed. Lab Compass shall further own all right, title, and interest in any copy, translation, modification, adaptation, enhancements or derivation of the Software, even if developed for or recommended by you and whether or not part of the Services. You shall not take any action that jeopardizes Lab Compass’s proprietary rights or acquire any rights in the Software. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software, or the intellectual property rights owned by Lab Compass. Except as specifically provided in Section 2 above, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights are granted by Lab Compass to you. Lab Compass’s name, logo, and the product name, Symport™, and other product names associated with the Software are trademarks of Lab Compass or third parties, and no right or license is granted to use them.
- PROPRIETARY MARKS. Except as specifically authorized by Lab Compass in writing, you shall not alter, change or remove from the Software any trademark, other proprietary mark or proprietary rights notice.
- DATA; PROTECTED HEALTH INFORMATION.
8.1 Data. Lab Compass does not own any of your Data and does not share any Data with any third-party except as expressly provided in this Agreement or as required by law. We do not represent or guarantee the truthfulness, accuracy, or reliability of Data, entered by you or your Users. You accept that any reliance on Data posted by you or your Users will be at your own risk. You, not Lab Compass, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of your Data. In the event this Agreement is terminated (other than by reason of your breach), Lab Compass will make available to you an electronic file of your Data within thirty (30) days of termination if you so request at the time of termination.
8.3 Protected Health Information. You acknowledge that by granting your Users to access the Software, you are responsible for ensuring such Users use the Software for the purposes for which they are accessing it. You agree that Lab Compass will not be responsible for any unlawful access to or use of the Software by your Users. You agree that you are responsible for ensuring that PHI and related information is properly protected under applicable law. You represent and warrant that you have obtained the proper consents, authorizations, and releases from individuals to the fullest extent required by applicable law before entering their PHI to the Software. You are solely responsible for any PHI exported from the Software by you or your Users. You agree to train all Healthcare Professionals on HIPAA or health privacy obligations, and the requirements of these Terms and ensure that they comply with such requirements. You will promptly notify us of any order or demand for compulsory disclosure of PHI if the disclosure requires access to or use of the Software. You will cooperate fully with us in connection with any such demand.
- SUPPORT. Lab Compass provides limited customer support to you and your Users. Standard support hours are Monday-Friday from 9 a.m. to 5 p.m. Eastern Time daily via e-mail (firstname.lastname@example.org), with integration, training, and consulting services available separately. Lab Compass has no obligation to provide additional services or upgrades, modifications, or new releases to the Software under this Agreement. Lab Compass may voluntarily provide some or all of these items; should Lab Compass do so, any such action shall not be considered a waiver of this provision.
- FEES AND PAYMENTS.
10.1 Service Fees. You shall pay Lab Compass for the Services (“Service Fees”) as provided in your Order Form(s). You shall make all payments for Service Fees to Lab Compass within thirty (30) days of the invoice date or as otherwise provided in your Order Form(s). Late payments shall incur interest equal to the lesser of (a) one and one-half percent (1.5%) per month, or (b) the maximum amount allowed by law.
10.2 Software/Subscription Fees. You shall pay all fees or charges to your account for use of the Software (“Subscription Fees”) in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial Subscription Fees will be equal to the current number of total User subscriptions requested, multiplied by the per User Subscription Fee currently in effect. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User subscriptions ordered for the entire term of this Agreement, whether or not such User subscriptions are actively used. You must provide Lab Compass with valid credit card or approved purchase order information as a condition to ordering the Software or Services. An Administrator may add User subscriptions through their Administrator account. Added subscriptions will be subject to the following: (i) added subscriptions will be coterminous with the preexisting term of the Agreement (either Initial Term or renewal term); (ii) the Subscription Fee for the added Users will be the then current, generally applicable Subscription Fee; and (iii) subscriptions added in the middle of a billing month will be charged in full for that billing month. Lab Compass reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email or through the Software to your Administrators, and such modifications shall be applicable to the next billing month. All pricing terms are confidential, and you agree not to disclose them to any third party.
10.3 Excess Data Storage Fees. The maximum storage space for Data provided to you at no additional charge is 1 GB per User license. If the amount of storage for Data exceeds these limits, you will be charged the then-current storage fees. Lab Compass will use reasonable efforts to notify you when the average storage used for Data per license reaches approximately 90% of the maximum; however, any failure by Lab Compass to so notify you shall not affect your responsibility for such additional storage charges. Lab Compass reserves the right to establish or modify its general practices and limits relating to storage of Data.
10.4 Payment Terms. All amounts are stated and payable in U.S. Dollars and do not include taxes. If Lab Compass is required to pay taxes in connection with this Agreement, including without limitation sales, use, GST, value-added, or other taxes (excepting taxes based on income), such taxes will be invoiced to and paid by you. Lab Compass reserves the right to modify the procedures used for invoicing/paying the Service Fees, as well as changing the Service Fees due. Lab Compass shall provide you with at least thirty (30) days written notice prior to making any changes to the payment procedures or the amount of Service Fees due for subsequent contract terms, which notice may be provided by email or through the Software to your Administrators,.
10.5 You agree to provide Lab Compass with complete and accurate billing and contact information. This information includes your legal name, street address, email address, and name and telephone number of an authorized billing contact and your contracts administrator. You agree to update this information within 30 days of any change to it.
10.6 If you believe your invoice is incorrect, you must contact Lab Compass in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
- TERM AND TERMINATION.
11.1 Term. This Agreement shall become effective on the date referenced in your Order Form(s) and shall remain in effect for a period of one (1) month, unless another period is referenced in your Order Form(s) or unless terminated earlier pursuant to Sections 11.2 or 11.3 below. Upon the expiration of the initial term, this Agreement will automatically renew for successive one-month terms at Lab Compass’s then current subscription fees.
11.2 Termination for Convenience. Either party may terminate this Agreement, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the term
11.3 Termination for Cause or Default. Either party may terminate this Agreement immediately upon written notice if the other party ceases to do business or (i) becomes insolvent, admits insolvency or admits a general inability to pay its debts as they become due; (ii) files a petition for protection under the bankruptcy laws of any jurisdiction; or (iii) an involuntary petition in bankruptcy is filed against such other party and is not dismissed within thirty (30) days thereafter. You may also terminate this Agreement if Lab Compass fails to perform a material obligation hereunder and fails to cure such nonperformance within twenty (20) days following written notice thereof. Lab Compass may also terminate this Agreement if you fail to perform a material obligation hereunder (without notice or an opportunity to cure); provided that, any breach of the restrictions in Section 2 of this Agreement by you, or any breach of your payment obligations shall be deemed a material breach of this Agreement.
11.4 Effect of Expiration/Termination. No refund of Fees shall be due in any amount on account of a termination by you under Section 11.2 or by Lab Compass under Section 11.3 of this Agreement. However, in the event a refund of fees are due, these shall be prorated to reflect the period during which you were able to make use of the Software and Services. When this Agreement expires or terminates, Lab Compass shall cease providing the Software and Services to you.
- WAIVER; DELAYS. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 13, THE SOFTWARE AND SERVICES ARE DISTRIBUTED AND PROVIDED “AS IS” WITHOUT ANY WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LAB COMPASS SPECIFICALLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This waiver of warranty affects your specific legal rights; you may have rights which may vary depending upon where you are located. Some jurisdictions do not allow limitations on implied warranties, so the limitations above may not apply to you.
THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LAB COMPASS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- LIMITED WARRANTY AND INDEMNIFICATION. Lab Compass represents and warrants that the Software will perform substantially in accordance with the Documentation; that it has the legal right to grant the licenses granted herein, including without limitation the license to any third party software; and that the Software does not contain any known viruses. Lab Compass agrees to defend you and your Users from and against any third party claim or action based on any alleged infringement of any United States patent, copyright, trade secret, or other proprietary right as a result of the use of the Software according to the terms and conditions of this Agreement, and Lab Compass agrees to indemnify you and your Users from any damages awarded against you in any such infringement claim or action or settlement thereof; provided, however, that (i) Lab Compass is promptly notified in writing of such claim, (ii) you grant Lab Compass sole control of the defense and any related settlement negotiations, and (iii) you cooperate with Lab Compass in defense of such claim. Notwithstanding the foregoing, Lab Compass shall have no obligation to indemnify you or your Users under this Agreement in the event the third-party infringement claim arises from your own infringing activity or that of a User.
- LIMITATION OF LIABILITY. EXCEPT FOR LAB COMPASS’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LAB COMPASS (AND ITS LICENSORS OR SUPPLIERS) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SOFTWARE, HOWEVER SUCH DAMAGES ARISE AND/OR WHETHER SUCH DAMAGES ARE CLAIMED IN TORT, CONTRACT OR OTHER ACTION, EVEN IF LAB COMPASS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LAB COMPASS’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, IN NO EVENT SHALL LAB COMPASS’S LIABILITY FOR ANY CLAIM WHATSOEVER HEREUNDER (OR ASSOCIATED HEREWITH) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED. Some jurisdictions do not allow for the exclusion or limitation of incidental or consequential damages, so the limitations above may not apply to you.
15.1 Publicity. Lab Compass may represent in press releases, on its website, and on other promotional materials that you are a subscriber of the Software.
15.2 Notices. Except as otherwise provided in this Agreement, all notices to either party shall be in writing and shall be considered given on the date of (i) confirmed delivery if sent by overnight courier or express mail service, (ii) confirmed delivery if sent by postage pre-paid certified or registered mail (or the equivalent), return receipt requested or (iii) personal delivery.
15.3 Assignment. Neither party shall assign or otherwise transfer any of their rights or obligations without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without consent, in connection with sale of a majority of such party’s voting interests or substantially all of its assets to an acquiring party.
15.4 Governing Law; Jurisdiction; Arbitration. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed, construed and enforced in all respects by the laws of the State of Michigan, excluding its choice of law/conflict of law provisions, and shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. Unless Lab Compass elects (in its sole option) to proceed in your local jurisdiction, the jurisdiction and venue of any arbitration, litigation or other dispute resolution method between the parties (which arises out of or relates to this Agreement) shall be exclusively in Washtenaw County, Michigan; you expressly submit and consent to such exclusive jurisdiction and venue.
15.5 Export Controls. You agree to comply with all applicable laws, domestic or foreign. You further understand that the Software and Services may be subject to restrictions and controls imposed by the U.S. Export Administration Act, as amended, and agree, if informed by Lab Compass, to comply with applicable export and import control laws and regulations issued from time to time by the U.S. Department of Commerce and other governmental agencies, foreign or domestic.
15.6 Force Majeure. Neither you nor Lab Compass shall be liable for failure to perform its respective obligations under the Agreement when failure is caused by fire, explosion, water, act of God, civil disorder or disturbances, strikes, vandalism, war, riot, sabotage, weather and energy related closings, or like causes beyond the reasonable control of the party (“Force Majeure Event”). In the event that either party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, the party shall: (a) as soon as practicable notify the other party in writing of the Force Majeure Event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible, including, as applicable, abiding by the disaster plan in place for Lab Compass. In the event that any Force Majeure Event delays a party’s performance for more than thirty (30) calendar days following notice by the delaying party pursuant to this Agreement, the other party may terminate this Agreement immediately upon written notice.
15.7 Entire Agreement; Amendments; Waiver. This Agreement constitutes the entire understanding and agreement between you and Lab Compass with respect to its subject matter. This Agreement may only be amended by mutual, written agreement of the parties. If there is any conflict between an Order Form, the Documentation and/or these Terms and Conditions, the following terms shall govern in the following priority: first, the Terms and Conditions, then the Documentation shall govern, and then the Order Form. Your purchase orders or similar documents (even if signed by Lab Compass) shall not modify or amend this Agreement. The failure of either party to object to or act with respect to any conduct of the other party that is in violation of the terms of this Agreement shall not be construed as a waiver thereof. If any provision of this Agreement is for any reason and/or to any extent determined to be unenforceable under applicable law, the remaining provisions of this Agreement shall remain in full force and effect.
15.8 Providing Notice. Should you wish to or are required to notify Lab Compass under this Agreement, use the contact information provided on the Lab Compass website located at https://mntnlabs.com.