John McNeil & Co., Inc. (“McNeil”, “us”, or “we”) provides in connection with the McNeil website, located at http://www.labsynch.com (the “Website”), a web-hosted information and workgroup service to manage data from laboratories and researchers and research groups (the “LabSynch Services”). The services offered by McNeil include the LabSynch Services, the Website, and any other features, content, or, applications offered from time to time by us in connection with the LabSynch Services and Website (collectively, the “Services”).
This Terms of Service agreement (“Agreement”) and the service description that can be found under http://www.labsynch.com/pricing.html sets forth the legally binding terms for your use of the Services. By accessing and using the Services through the Website, you agree to comply with and be bound by this Agreement, whether you are a “Visitor” (meaning you are simply browsing the Website), a “Free User” (meaning you have registered with us and set up an Account to use the free version of the LabSynch Services), or you are a “Member” (meaning that you have registered with us and set up an Account to use the fee-bearing version of the LabSynch Services, either on a regular basis, or during a time-limited trial period). If you do not agree with all provisions of this Agreement, please do not use the Services.
McNeil offers the LabSynch Services in different versions and it is important for you to understand the differences. Among other things, the version you select determines the way your Content (as defined in Section 2 of this Agreement) is handled by the LabSynch Services. Generally, the free version of the LabSynch Services offers Free Users almost the same functionality as the fee-bearing version that is offered to Members, with one important difference (please see the fee schedule for more information about the differences between the different versions of the LabSynch Services): ALL CONTENT THAT FREE USERS USE OR UPLOAD WITH THE FREE VERSION OF THE LABSYNCH SERVICES CAN BE ACCESSED BY EVERY VISITOR, FREE USER, AND MEMBER, WHILE CONTENT THAT MEMBERS USE WITH THE FEE-BEARING VERSION CAN ONLY BE ACCESSED BY THE MEMBER WHO POSTED SUCH CONTENT, OR BY OTHER MEMBERS WHO BELONG TO THE SAME WORKGROUP (AS DEFINED IN SECTION 2), SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WANT TO DISCLOSE YOUR CONTENT TO THIRD PARTIES OUTSIDE OF A DEFINED WORKGROUP, PLEASE DO NOT USE THE FREE VERSION OF THE LABSYNCH SERVICES.
If you sign up for additional services that are governed by additional terms and conditions, we will inform you accordingly when you sign up. Such additional services will be governed by the additional terms and conditions and, unless otherwise provided by such additional terms and conditions, they are hereby incorporated into this Agreement by reference.
PLEASE NOTE: THE SERVICES ARE PROVIDED FOR RESEARCH USE ONLY. THE SERVICES ARE NOT FOR CLINICAL OR DIAGNOSTIC USE, OR CLINICAL TRIAL USE.
In order to participate in the LabSynch Services, you must create a LabSynch Services account (“Account”) by registering on the Website and, if you have signed up for the fee-bearing version of the LabSynch Services, paying the monthly fee.
1.2 Password. When you sign up to become a Free User or Member, you will also be asked to choose a Login name and a password for your Account. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Account, Login name, or password of another Free User or Member at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password. You are solely responsible for any and all use of your Account.
1.3 Fees. We provide the fee-bearing version of the Services subject to your payment of the applicable monthly fee as set forth on the then-current fee schedule, which can be found here: http://www.labsynch.com/pricing.html and we reserve the right to change the fees from time to time in our discretion. Upon using the fee-bearing version of the Services, you will be responsible for the payment of any applicable fees, and shall pay such fees to us.
1.4 Term. This Agreement shall remain in full force and effect while you are a Visitor, use the Services, or are a Free User or Member unless and until your Account is terminated as provided herein. You may delete your Account and end your registered membership as a Free User or Member at any time, for any reason by following the instructions on the Account webpage. McNeil may terminate your Account if (i) you are in breach of this Agreement; (ii) if McNeil decides in it sole discretion to stop providing the applicable Services; or (iii) for any or no reason by giving you sixty (60) days notice by sending an e-mail to you at the e-mail address in your Account. If you terminate your Account for which you paid fees, McNeil has no obligation to refund you any fees. If McNeil terminates without cause your Account for which you paid fees, McNeil will refund you a pro rata portion of any fees that you have paid for the terminated Account. You understand that any termination of this Agreement and your Account involves deletion of your Account information from our live databases and all the information and Content stored for such Account. McNeil will not have any liability whatsoever to you for any termination of your Account or related deletion of you information or Content. We may modify, suspend or discontinue the Services at any time, for any reason, at our sole discretion.
1.5 Backup of Content. We are not obligated to backup any Content that is posted on the Services. You are solely responsible for creating backup copies of and replacing any Content you post or store on the Services at your sole cost and expense.
We do not claim ownership in any “Content” (which means, without limitation, any and all information, data, results, ideas, plans, postings, messages, sketches, opinions, text, files, links, images, photos, video, sounds, inventions (whether or not patentable), notes, works of authorship, feedback, or other materials) that is uploaded, provided or otherwise transferred to the Services (“posted”), but to be able to legally provide you and other Visitors, Free Users, and Members with the Services, we have to have certain rights to store Content you post in connection with the Services for you and to make it available to (a) others, if you are a Free User or (b) to other members of your Workgroup(s) if you are a Member, in each case as set forth below in Subsection 2.1. In return, we also make the Content of other Free Users, and, if you are a Member, of other members of your Workgroup(s), available to you through the Services as set forth below in Subsection 2.2. A “Workgroup” is a group of Free Users or Members that share Content through the Services.
2.1 Your Content. By posting any Content to the Services, you hereby grant us a non-exclusive, fully-paid and royalty-free license to store such Content and make it available through the Service to (a) every Visitor, Free User, and Member if you are Free User or (b) to any other member of your Workgroup if you are a Member. You should only upload Content to the Services that you are comfortable sharing under the terms and conditions set forth herein with (i) every Visitor, Free User, and Member if you are a Free User or (ii) other members of your Workgroup if you are a Member.
2.2 Other Free User’s and Member’s Content. The Services may contain Content posted by other Free Users and Members. Such Free User and Members and/or other third parties own and retain all proprietary rights in such Content. Content of Free Users can generally be accessed by every Visitor, Free User, and Member of the LabSynch Services, while Content of Members can only be accessed by other Members who belong to the same Workgroup as the Member who posted such Content, subject to the terms and conditions of this Agreement.
2.3 Content - Ownership and Restrictions. You acknowledge that all the intellectual property rights in the Content (other than the Content you provide) are owned by the Free User or Member who posted such Content, or a third party. You are not authorized under this Agreement to use that Content. Any rights you have in the Content of others must be agreed upon by you and the owner of such Content. In addition, except for Content owned by you, that is in the public domain, or for which you have been given permission by the respective owner, you agree not to (i) use, reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, disclose to any third party, or create derivative works based on the Content or (ii) decompile or reverse engineer any Content.
2.4 Services - Ownership and Restrictions. You acknowledge that all the intellectual property rights in the Services are owned by McNeil, or McNeil’s licensors. You agree not to (i) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Services or (ii) decompile, reverse engineer, or copy the Services. Except as expressly permitted under this Agreement, you agree not to (a) rent, lease, loan, or sell access to the Services or (b) decompile, reverse engineer, or copy any part of the Services for which the source code is not provided to you. We make available part of the software used for the Services at http://www.labsynch.org under the terms and conditions that can be found there.
You are solely responsible for any and all Content that is posted by or through your Account on the Services, including any e-mail, and for your interactions with any other Visitors, Free Users, and Members.
3.1 Prohibited Content. You agree that you will not post any Prohibited Content. “Prohibited Content” includes Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) infringes another person’s Content without a license to do so, whether or not the intellectual property is registered (or filed for registration) in any country; (vi) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work, whether it is protected by copyright or trade secret law, or not, such as, without limitation, presenting the work of a third party as your own (plagiarism), providing stolen or illegally obtained Content, providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (vii) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (viii) provides instructional information about illegal activities such as, without limitation, making or buying illegal weapons or substances, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (ix) solicits passwords or personally identifying information for commercial or unlawful purposes from other Free Users and Members; (x) except as expressly approved by us, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (xi) contains viruses, Trojan horses, worms, time bombs, or similar software; or (xii) otherwise violates the terms of this Agreement or creates liability for us. You represent and warrant that: (a) you own the Content posted by you on the Services or otherwise have the right to grant the license set forth in this Agreement and (b) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person.
3.2 Breach. Any use of the Services in violation of this Agreement may result in, among other things, termination or suspension of your rights to use the Services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information and Content we consider necessary or appropriate, including, without limitation, Account information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted Content.
3.3 Enforcement by Us. We have the right (but not the obligation) to review any Content and delete (or modify) any Content that in our sole judgment violates this Agreement or which is Prohibited Content, or may otherwise violate the rights, harm, or threaten the safety of any Visitor, Free User, or Member or any other person, or create liability for us or any Visitor, Free User, or Member. We reserve the right (but have no obligation) to investigate and take appropriate legal action in our sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing the Prohibited Content from the Services (or modifying it), terminating your membership, reporting you to law enforcement authorities, and taking legal action against you.
3.4 Non-Commercial Use. The Services are for the personal research use of Visitors, Free Users, and Members only and may not be used to promote any commercial endeavors or to provide any professional services to any third party, except those that are specifically approved in writing by us or in connection with Services expressly designated for commercial use. You will not engage in advertising to, or solicitation of, any Visitor, Free User, or Member to buy or sell any products or services through the Services. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from your Content without notice and may result in suspension or termination of your Account.
3.5 No Disruption. You will not: (i) cover or obscure the banner advertisements on your Account page, or any McNeil page via HTML/CSS, scripting, or any other means, if any, (ii) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; (iii) without McNeil’s express written permission, introduce software or automated agents to the Services so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Services; or (iv) interfere with, disrupt, or modify any data or equipment to manipulate the location-based functionality of the Services.
3.6 Miscellaneous. You will not attempt to impersonate another Visitor, Free User, or Member or person, including any of our employees. You will use the Services in a manner consistent with any and all applicable laws and regulations.
4.1 Third Party Content. Content from other Free Users, Members, and third parties may be made available to you through the Services. Because we do not control such Content, you agree that we are not responsible for any such Content. Because we do not have control over such Content, we make no guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Free Users, Members, and third parties.
4.2 Rights to Third Party Content. The scope of rights you have with respect to other Free User’s, Member’s, and any third party’s content that you may access through the Services, as well as the scope of rights you grant any Visitor, Free User, Member, or third party to the Content you post, is defined and governed by any agreement between you and such Visitor, Free User, Member, or third party and not between McNeil and you, or this Agreement. McNeil solely provides you and other Free Users and Members a platform which can be used to share such Content under the rules and conditions agreed upon between you and other Visitors, Free Users, and Members. Your interactions with other Visitors, Free Users, and Members on the Services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other Visitor, Free User, and Member. You agree that McNeil will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other Visitor’s, Free User’s, or Member’s use or disclosure of your Content and personally identifiable information. If there is a dispute between you and any third party (including any Visitor, Free User, or Member), we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and any such party.
4.3 Visitor, Free User, and Member Interaction. You will not use any Content and other information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Visitor, Free User, or Member without their prior explicit consent. In order to protect our Visitors, Free Users, and Members from such advertising or solicitation, we reserve the right to restrict the number of communications which a Free User and Member may send to other Free Users and Members and the sharing of any Content in any twenty-four (24) hour period to a number and amount which we deem appropriate in our sole discretion.
The Services might contain links to third-party websites (“Third-Party Websites”) (a) placed by us as a service to those interested in this information; or (b) posted by other Free User and Members. You use all such links to Third-Party Websites at your own risk. We do not monitor or have any control over, and makes no claim or representation regarding Third-Party Websites. To the extent such links are provided by us, they are provided only as a convenience, and such link to a Third-Party Website does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Websites, or websites linking to the Website. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
It is our policy to terminate membership privileges of any Free User or Member who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and e-mail address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for our Copyright Agent for notice of claims of copyright infringement is as follows:
John McNeil & Co., Inc.
Attn: Copyright Agent
6389 Castejon Dr.
La Jolla, CA 92037
e-mail: support@labsynch.com
We make reasonable efforts to protect your Content and data through the design of the Services as well as technical means, but no company, including McNeil, can fully eliminate security risks connected to handling Content on the internet and you acknowledge, understand and agree that McNeil therefore cannot and does not guarantee the security of your Content and data while it is transmitted over the Internet or stored on the Services.
THE FOLLOWING ONLY APPLIES IF YOU USE THE FEE-BEARING VERSION OF THE LABSYNCH SERVICES AS A MEMBER: Without limiting the foregoing, we know that, depending for what you use the LabSynch Services for, the security of Content that you post on the Services might be very important to you. Please be aware that your handling of such Content and the Services is a very important factor in securing your Content from unauthorized access by third parties. Please be circumspect about setting up Workgroups and posting Content for such Workgroups. Please also remember that adding Members to your Workgroup will give them access to all Content posted for such Workgroup, even if it was posted before you granted such Members access. The Services offer you many tools and functions to handle Workgroups and the sharing of Content within such Workgroups. Please note that LabSynch Services grant Members access to Workgroups based on the credentials belonging to an Account (Login Name and password) and that McNeil does NOT further verify the identity of Account holders.
Use of the Services is also governed by our Privacy Policy , which is incorporated into this Agreement by this reference.
THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE. WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY US DOLLARS ($50) AND THE AMOUNTS YOU PAID TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM, IF ANY.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from: (i) any interactions with other Visitors, Free Users, and Members, (ii) any incorrect or inaccurate Content (including any information in Accounts) posted on the Services, whether caused by Free Users or Members or by any of the equipment or programming associated with or utilized in the Services, or (iii) conduct of any Visitor, Free User, or Member of the Services.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “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.”
12.1 Amendments. We may modify this Agreement from time to time and such modification shall be effective: (1) upon posting by us on the Website, for all Free Users and Members who first use the Services affected by such modification after the posting, or (2) thirty (30) days after posting by us on the Website, for all existing Free Users or Members of the affected Services. If you do not agree to the modifications, you must cease your use of the Services.
12.2 Survival. The provisions under Sections 2, 3, 4, 6, 9, 10, 11, and 12 will survive termination of this Agreement for any reason.
12.3 Indemnity. You agree to defend, indemnify, and hold us, our subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services in violation of this Agreement and/or arising from your breach of any provision of this Agreement.
12.4 U.S. Export Controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. By downloading or using any software, you represent and warrant that such download or use is not in violation of any such law.
12.5 Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts and federal courts located within the State of California for the purpose of litigating all such claims or disputes. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
12.6 Other. This Agreement is accepted upon your use of the Services or by registering to be a Free User or Member on the Website. This Agreement (which includes the Privacy Policy available at http://www.labsynch.com/privacy.html and any other rules posted on the Website) constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement by e-mailing us at: info@labsynch.com .
12.7 Copyright/Trademark Information. Copyright © 2006, McNeil. All rights reserved. The trademarks, logos and service marks ("Marks") displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.