Welcome to LabFellows (www.labfellows.com), the website and online service of Lab Fellows, Inc. (collectively “LabFellows”, “we”, or “us”). These terms and conditions (collectively the “Terms” or the “Agreement”) apply to our online and/or mobile services, website and any web services or applications owned, controlled, or offered by LabFellows (collectively the “Service”). This Agreement applies to all visitors, users, and others who access any or all of the Service (“Users”). In the event that a master service agreement exists between the User (as defined below) and LabFellows, such master services agreement shall govern the relationship between LabFellows and the User and such User’s access to and use of the Services.
Purpose. LabFellows is a marketplace for scientific collaboration. Our mission is to improve the quality and efficiency of scientific research by promoting collaboration between everyone.
Clients and Fellows. LabFellows makes the Service available as an online venue where a party seeking scientific lab space, equipment, and/or research services (“Client(s)”) and individuals, labs or companies providing scientific lab space, equipment, and/or research services (“Fellow”) identify each other and work together to define, complete and pay for scientific lab space, equipment, and/or research services (“Requests”). The Service contains features that enable Clients and the Fellow to do, among other things, the following:
Transacting through the Service. As a Client, you may submit a request for a Quote by completing our Request Guide, and providing the necessary descriptive information for your desired scientific lab space, equipment, and/or research services (a “Request”) to such Fellow through the Service. In response to a Request, the Fellow may submit to you a quote (“Quote”), including a description of the Request-related services the Fellow will offer, the timeframe for the Request to be completed and pricing information (collectively, the “Specifications”).
Notwithstanding the foregoing, in the event that a master service agreement exists between the Client and LabFellows, as between LabFellows and the Fellow, LabFellows may assume the role and obligations of the “Fellow” as set forth in these Terms.
Service Contract. The performance of Requests involves a direct contractual relationship between a Client and Fellow. Clients and the Fellow agree that they will contract directly with one another for the performance of Requests. You acknowledge and agree that this contractual relationship is formed when a Client accepts a Quote on the Service. In such an instance, the Client agrees to pay for, and the Fellow agrees to perform, the Request in accordance with the following terms and agreements: (1) these Terms; (2) the quoted “Total Cost” (as further described in Section 3 below) and (3) additional contractual provisions agreed upon by the parties and uploaded to the Service, including any LabFellows Form Agreements adopted by the Fellow as indicated on the Fellow’s profile on the Service (or as otherwise requested by Clients and agreed upon by the parties), along with (4) the Specifications accepted by both Client and Fellow and uploaded to the Service, to the extent not inconsistent with these Terms (a “Service Contract”). If there is no additional written agreement between the parties, the Fellow agrees to perform the Request in accordance with the Specifications and in accordance with the Service Contract and standard industry best practices. LabFellows’ sole responsibility with respect to Service Contracts is limited to (i) facilitating the availability of the Service, including by providing, for Clients’ and the Fellow’s convenience, the LabFellows Form Agreements, and (ii) serving as the limited authorized agent of the Fellow for the purpose of facilitating payments from Clients on behalf of the Fellow and transmitting such payments to the Fellow as described in Section 3 below.
Important Clarification Regarding Our Form Agreements. LabFellows provides the LabFellows Form Agreements as an informational resource to help Clients and the Fellow foster an effective collaboration in accordance with common industry practices; however, please be advised that the LabFellows Form Agreements are not suitable for use in all circumstances and may not meet your needs. You agree that you will carefully review the LabFellows Form Agreements before agreeing to them in connection with a Service Contract. We encourage that you seek independent legal counsel’s review and opinion prior to utilizing the LabFellows Form Agreements in connection with forming a Service Contract. The LabFellows Form Agreements are provided for informational purposes only; you and LabFellows expressly disclaim any attorneyclient relationship, and LabFellows expressly disclaims any liability relating to the LabFellows Form Agreements and your use thereof. For the purposes of these Terms, “LabFellows Form Agreements” means (a) the LabFellows Material Transfer Agreement and (b) the LabFellows NonDisclosure Agreement.
Compliance with Law and University Policies; Authority. By posting, accepting, or otherwise entering into a Service Contract, you represent and warrant that the Service Contract and/or any Requests you engage in together with any other content or materials you provide complies with all applicable laws, regulations, and university policies and agreements, and does not violate any third party rights. You acknowledge and agree that you have the requisite authority and are authorized to enter into any Service Contracts and/or to obtain or provide any and all Requests included under a Service Contract in accordance with this Agreement and the terms of your Service Contract. LabFellows disclaims any and all liability relating to the parties’ compliance with applicable laws, regulations, and university policies and agreements.
LabFellows is not a party to Service Contract, transactions. LabFellows is committed to providing a platform that helps foster effective collaborations between Clients and the Fellow. However, LabFellows is not a party to any relationship or agreement entered into between a Client and the Fellow (including, without limitation, Service Contracts) and disclaims any and all liability relating thereto. Although Clients registered on LabFellows are verified by the Service, we cannot guarantee the suitability, reliability, or accuracy of the Requests advertised, requested of, and performed by, the Fellow. We also cannot guarantee the qualifications, background, or abilities of the Fellow; the ability of the Fellow to deliver Requests; the contents of any Service Contract, or whether a Client or Fellow can or will actually complete a transaction. All rights and obligations for the performance, purchase and sale of Requestrelated services are solely between the Client and the Fellow, LabFellows acts only as an interface to facilitate communications between Clients and the Fellow.
Accounts. Your LabFellows account gives you access to the services and functionality offered by LabFellows in our sole discretion. Your account is not transferable, and you may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of your account. We will not be liable for any losses caused by any unauthorized use of your account.
Account Settings; Use of email address. You may control your User profile and how you interact with the Service by changing the settings in the Account Settings section. By providing us your email address, you consent to our using the email address to send you Servicerelated notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Use of Personal Information in Communications. To prevent direct or indirect attempts to circumvent the Service, LabFellows has the right, but not the obligation, to prevent Users from including email addresses, phone numbers, and other personal information in communications sent via the Service.
For Clients. You, as a Client, will be invoiced (a) a fee that the Fellow earns for performing the Requests (“Request Fee”), (b) a fee that LabFellows earns for creating, hosting, maintaining, and providing the Service (“Service Fee”), and (c) any shipping fees that you have authorized in connection with the performance of your Request (collectively, the “Total Fee”). LabFellows sets the Service Fee, which is calculated as a percentage of the Request Fees. The amounts of both the Request Fee and the Service Fee are clearly shown to the Client on each Quote Page as the “Total Cost”. LabFellows does not set the Request Fees; the applicable Fellow sets such Request Fees. Accordingly, Request Fees and Service Fees vary based on the particular Requests in question. Upon your indication on the Service that the Request is complete, LabFellows will make available on the Service an invoice for the applicable Total Fee. If LabFellows receives no communication from you for two weeks following the Fellow’s indication that the Request is complete, LabFellows may indicate Request completeness on your behalf and make the invoice available on the Service at that time. Except as otherwise indicated on the invoice, you agree to pay LabFellows or our third party payment processor the Total Fee, and any other fees and taxes that may accrue in relation to your use of the Service (if any), indicated on the invoice within 30 days of obtaining access to such invoice via credit card, wire transfer or check made out to “Lab Fellows, Inc.” Upon receiving payment for the Total Fee from you, we or our third party payment processor will remit the applicable Request Fee to the Fellow in accordance with the terms below. All fees and payments are nonrefundable and nontransferable except as expressly provided in these Terms. LabFellows has no obligation to provide refunds or credits relating to any Requests, but may do so in LabFellows’ sole discretion. You acknowledge and agree that, notwithstanding the fact that LabFellows is not a party to the agreement between you and the Fellow, LabFellows acts as the Fellow’s payment agent for the limited purpose of facilitating payments from you on behalf of the Fellow.
For Fellow. When you register to be the Fellow, you’ll provide us with certain payment information and other necessary account information. We’ll use this information to provide Request Fees collected from Clients to you. If you are the Fellow, you can set the Request Fee to be charged to Clients for each of your Quotes on a fixedfee basis, and you may vary the Request Fee for a given Quote at any time prior to the acceptance of your Quote by the Fellow. With respect to each Service Contract you enter into on the Service, you hereby authorize LabFellows or our third party payment processor to collect the Request Fee from the Client on your behalf upon the Client’s indication on the Service that the Request is complete. Upon your completion of the Request in accordance with the terms of the Service Contract, LabFellows guarantees the payment of the applicable Request Fee to your indicated payment account within thirty (30) days of Client’s indication on the Service that such Request is complete. You, as the Fellow, are solely responsible for all costs incurred by you in using the Service and performing Requests and determining, collecting, reporting and paying all applicable state and federal sales, income and other taxes.
4. LABFELLOWS CONTENT
LabFellows Content. Except for your content posted by you on the Service, you agree that the Service and all software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs and other content within the Service and all intellectual property rights in the foregoing (collectively, the “LabFellows Content”) are the exclusive property of LabFellows and its licensors. Except as expressly provided herein, nothing in these Terms shall be deemed to create a license to LabFellows Content. Use of the LabFellows Content for any purpose not expressly permitted by these Terms is not permitted.
Our license to you. Subject to the terms and conditions of these Terms, we grant you a limited, non transferable, and revocable license to use the Service, including accessing and viewing LabFellows Content, as expressly permitted by the features of the Service. LabFellows may terminate this license at any time for any reason or no reason. Except for the rights and licenses expressly granted, LabFellows reserves all other rights and no other rights are granted by implication or otherwise.
5. LICENSES AND SERVICE ACCESS
Restrictions on Use. You agree that you will not use any robot, spider, scraper or other automated means to access the Service for any purpose without our express written permission. Additionally, you agree that you will not engage in any of the following prohibited activities: (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Service) from the Service, any software code that is part of the Service, or any services that are offered on the Service without our express written permission; (c) interfere or attempt to interfere with the proper operation of the Service or any activities conducted on the Service; (d) bypass any measures we may use to prevent or restrict access to the Service or any subparts of the Service including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (g) upload invalid data, viruses, worms, or other software agents through or to the Service; (h) collect or harvest any personally identifiable information, including account names, from the Service; (i) access any content on the Service through any technology or means other than those provided or authorized by the Service;
(j) impersonate another person or otherwise misrepresent your affiliation with a person or entity, (k) conduct fraud, (l) hide or attempt to hide your identity; or (m) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products or services, or (n) use the Service to find a Client or the Fellow and then Request or provide Requests outside of LabFellows’ platform or the Service, in order to circumvent the obligation to pay any fees due under this Agreement or for any other reasons.
Changes, Termination, and Suspension. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement, and any terms of these Terms which by their nature should survive termination shall do so.
6. RESOLUTION OF DISPUTES
Between You and Another User. Because LabFellows is not party to the Service Contracts between Clients and the Fellow or involved in the completion of Requests, in the event that you, as either a Client or Fellow, have a dispute with one or more other Clients or the Fellow, as applicable (each, an “Other Party”), you agree to address such dispute directly with the Other Party in question and you release LabFellows (and our officers, directors, agents, investors, subsidiaries, and employees) (collectively “Releasees”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If such a dispute arises, LabFellows may, in its sole discretion, facilitate communication between you and the Other Party in connection with such dispute. If such a dispute is unable to be resolved between you and the Other Party, LabFellows may, in its sole discretion, intervene in such dispute and take any actions we deem appropriate.
Between You and LabFellows. If a dispute arises between you and LabFellows, our goal is to resolve such dispute quickly and costeffectively. Accordingly, you agree that any claim or controversy you have with us at law or equity that arises out of or relates to this Agreement or the Services will be resolved in accordance with the terms of this Section 6. Before resorting to these alternatives, you agree to first contact LabFellows directly to seek dispute assistance using the email@example.com address. These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws principles. Notwithstanding the foregoing, if you are using the Service on behalf of a government affiliated university, institute, organization or other governmentaffiliated entity (a “GovernmentAffiliated Entity”), and any applicable law, regulation or governing policy restricts you from entering agreements governed under the laws of the State of California, then these Terms shall be governed by the laws of the jurisdiction in which you reside.
Arbitration. In the event that LabFellows has not been able to resolve a dispute with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy between you and us (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless you and LabFellows agree otherwise, the arbitration will be conducted in the county where you reside. Each party will be responsible for paying any AAA filing, and administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LABFELLOWS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, if you are using the Service on behalf of a Government Affiliated Entity, and any applicable law, regulation or governing policy restricts you from resolving Claims by binding arbitration as set forth above, then any Claims will be brought in the state or federal courts located in the federal district in which you reside.
7. THIRD PARTY LINKS
8. WARRANTY DISCLAIMER
THE SERVICE, INCLUDING THE LABFELLOWS FORM AGREEMENTS, IS PROVIDED BY LABFELLOWS ON AN “AS IS,” “AS AVAILABLE” BASIS, AND WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WHETHER ARISING OUT OF STATUTE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE SERVICE BY ANY THIRD PARTY. THE LABFELLOWS FORM AGREEMENTS MAY NOT MEET ALL OF YOUR REQUIREMENTS, AND MAY NOT ADDRESS ALL ISSUES AND CIRCUMSTANCES THAT MAY ARISE BETWEEN CLIENTS AND FELLOWS.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR LICENSORS OR THIRDPARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE WILL HAVE NO LIABILITY TO YOU THAT ARISES OUT OF OR RELATES TO ANY TRANSACTION THAT IS PERFORMED USING THE SERVICE OR ANY DISPUTE, CONTROVERSY OR CLAIM THAT ARISES OUT OF OR RELATES TO TRANSACTIONS PERFORMED BETWEEN YOU AND OTHERS THROUGH THE SERVICE. IN ADDITION, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING OUT OF OR RELATED TO REQUESTS OR SERVICE CONTRACTS ENTERED INTO WITH RESPECT TO REQUESTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THIS AGREEMENT, IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) $1,000, OR (B) THE AGGREGATE AMOUNT OF FEES ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.
The Service is controlled and operated from its facilities in the United States. LabFellows makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
If you have a dispute, controversy or claim with or against another User or a third party, you agree to, and do hereby, release LabFellows (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
This release will not apply to the extent the cause of the dispute is our failure to meet one of our obligations under the Terms of Service. This release will not apply if you are using the Service on behalf of a Government Affiliated Entity and any applicable law, regulation or governing policy restricts you from agreeing to such release.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by LabFellows without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Notwithstanding the foregoing, if you are using the Service on behalf of a GovernmentAffiliated Entity, and applicable law, regulation or governing policy restricts you from agreeing to this Section 11, then the following provision will apply: “This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by either party without prior written consent of the other party. Any attempted transfer or assignment in violation hereof shall be null and void.”
12. NOTIFICATION PROCEDURES
Unless otherwise expressly stated in these Terms, LabFellows may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on scienceexchange.com, as determined by LabFellows in our sole discretion. LabFellows reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. LabFellows is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
13. ENTIRE AGREEMENT / SEVERABILITY
These Terms, together with any amendments and any additional agreements you may enter into with LabFellows in connection with the Service, shall constitute the entire agreement between you and LabFellows concerning the Service. If any provision or portion of a provisions of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining portion of such provision and any other provisions of this Agreement, which shall remain in full force and effect.
14. NO WAIVER
If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact LabFellows Customer Support at support@LabFellows.com.
If you wish to report a violation of the Terms of Service, have any questions or need assistance, please contact LabFellows Customer Support at support@LabFellows.com.
All contents of Website or Services are: Copyright © 2017 Lab Fellows, Inc. Attn: Lab Fellows, Inc. United States Corporation Agents, Inc. 1521 Concord Pike, Suite 301 Wilmington, DE 19803. All rights reserved.
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