Terms & Conditions
Subscription and Services Agreement
THIS SUBSCRIPTION AND SERVICES AGREEMENT AND THE ORDER FORM (DEFINED BELOW) GOVERN THE USAGE OF THE SHIFTLAB SERVICES.
BY EXECUTING ANY ORDER FORM THAT REFERENCES THIS AGREEMENT YOU AGREE TO THESE ADDITIONAL TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE SIGNING UP FOR THE SERVICES ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE DULY AUTHORIZED TO REPRESENT THE COMPANY AND ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT ON BEHALF OF THE COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SHIFTLAB SERVICES.
Definitions. Capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them below:
1.1 “Customer” means the person and/or entity described in the Order Form.
1.2 “Customer Data” means all data, information or material submitted or provided by Customer to Shiftlab through use of the Services under this Agreement.
1.3 “Shiftlab” means Shiftlab, LLC 571 Monon Blvd., Suite 200, Carmel, IN 46032
1.4 “Order Form” means a document that identifies: (i) the Software to be provided by Shiftlab and (ii) the subscription term, subscription fees, access level for Unique Users, and other terms relating to Shiftlab’s provision of such Software. Each executed Order Form will become a part of this Agreement.
1.5 “Services” means the online hosting, maintenance and other services as set forth in an Order Form.
1.6 “Software” means the Shiftlab software products identified on an Order Form executed by the parties, which products use dose modelling algorithms intended for drug dosage decision support and are used as an information system to store, manage and assist in the analysis of patient data within healthcare facilities, including associated documentation and any Upgrades and Enhancements. Additional Order Forms may be executed by the parties from time to time for additional software products.
1.7 “System” means the Software, forms, reports, associated documentation, Shiftlab database, and all software, hardware and systems accessed or utilized by Shiftlab, in connection with providing access to Customer under this Agreement.
1.8 “Upgrades and Enhancements” means code corrections and fixes, updates and new releases to the Software, which are made available by Shiftlab generally to all of its customers. Upgrades and Enhancements include new optional functionality and net-new functionality for the Software subscribed to by Customer, but do not include net-new functionality falling outside of the scope of the Software subscribed to that would otherwise be sold as a separate component.
1.9 “Unique Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized by Customer and who have been issued a User ID and password to access and use the System, which access will be according to the access level set forth in the Order Form.
2.1 Grant of Rights. Subject to the terms and conditions of this Agreement, Shiftlab grants to Customer a non-exclusive, non-transferable, limited term right, without the right to sub-license, for Unique Users to access, display and use the System remotely via the Internet for the number and type of Unique Users and for the access level as set forth on an Order Form. Shiftlab and its licensors reserve all rights in and to the System not expressly granted to Customer under this Agreement. The System will be made available via the Internet in a Software as a Service, or “SaaS” model.
2.2 Restrictions on Use. Customer will not, and will not authorize any third party to, (a) reproduce, display, download, modify, create derivative works of or distribute the System, or attempt to reverse engineer, decompile, disassemble or access the source code for the System or any component thereof; (b) use the System, or any component thereof, in the operation of a service bureau to support or process any data of any party other than Customer; (c) permit any party, other than the then-currently authorized Unique Users to independently access the System; (d) transmit the System, in whole or in part, electronically by any means; (e) access the System via any means other than over the Internet using Shiftlab’s supported technology; or (f) access the System other than through the authorized User ID and password. Shiftlab reserves the right to include a license key or other means within the System to audit or limit use thereof to the then currently authorized Unique Users and to enforce the restrictions on use of the System set forth in this Agreement.
2.3 Authorized Use Only. Customer is responsible for the acts and omissions of all Unique Users. Customer will implement reasonable controls to ensure that the System is only accessed and used by the then-currently authorized Unique Users and only within each Unique User’s access level. Customer will promptly notify Shiftlab of any unauthorized access to or use of the System that becomes known to Customer. Customer will take all reasonable steps to ensure that each Unique User’s access to and use of the System is in compliance with the terms of this Agreement. Customer will be responsible for any breaches by Unique Users within Customer’s reasonable control, and will cooperate with Shiftlab in the enforcement of this Agreement against all third party Unique Users. Shiftlab will have the right to immediately discontinue Customer’s or a Unique User’s access to and use of the System if such Unique User breaches the terms of this Agreement or otherwise impedes or disrupts any third party’s use of the System. Where reasonably possible, Shiftlab will deliver notice to Customer of the termination of a Unique User’s access to and use of the System.
3. Customer’s Obligations. Customer will: (a) cooperate with Shiftlab on all reasonable requests for information to achieve an effective implementation of the System and performance of the Services; (b) have in place the appropriate browser and other software and hardware for accessing the System; (c) designate a Customer representative who is authorized to make commitments on Customer’s behalf and who will render decisions promptly to avoid delays in the progress of the Services; and (d) will not decrease number of Unique Users during the Term, but may increase as necessary pursuant to a true-up of Unique Users at the end of each thirty day billing period..
4. Services. Shiftlab will perform the Services pursuant to the Order Form and this Agreement. Any modification to an executed Order Form must be approved in writing by the parties and may result in an adjustment to timelines or Fees due.
5. Fees. Customer will pay the amounts set forth on each Order Form or as otherwise agreed in writing by both parties (“Fees”). Shiftlab will not credit or refund Customer any prepaid Fees. Fees are exclusive of taxes, levies, duties, governmental charges or expenses. In addition to the Fees and expenses specified in this Agreement, Customer is solely responsible for and will pay (or reimburse Shiftlab for) all withholding, value added and sales taxes due, except for taxes on Shiftlab’s income. Customer will, at Shiftlab’s request, provide Shiftlab with receipts and other written evidence of payment of such taxes.
6. Payment Terms. Payment terms are set forth in the Order Form.
7. Ownership. Shiftlab and its third party licensors, where applicable, retain ownership of all right, title and interest to all copyrights, patents, trademarks, trade secrets and other intellectual property rights in and to the System, including without limitation the Software, Shiftlab’s database (and all data therein except for Customer Data), all associated forms and documentation, Upgrades and Enhancements, and all processes, know-how, methodology and the like utilized by or created by Shiftlab in performing under this Agreement, as well as all work product developed in providing the Services or resulting from providing the Services, including any enhancement requests, feedback or information provided by Customer relating to the Services. Shiftlab retains all right, title and interest in and to all methodologies, processes, techniques, ideas, concepts, software, trade secrets, know-how, copyrights, trademarks and other intellectual property rights used by or created by Shiftlab in the provision of the Services. Shiftlab reserves all rights not granted herein.
8. Customer Data. Customer retains ownership of all right, title and interest in and to the Customer Data. Customer grants Shiftlab a non-exclusive, non-transferable license to use the Customer Data to perform its obligations in accordance with the terms of this Agreement and, on a perpetual basis, to use the data in an aggregated, unidentifiable format for research, data analysis, benchmarking and improvement of the Software for Shiftlab. Shiftlab will not sell the Customer Data to a third party in either detailed or aggregate form. Customer warrants that it may freely transmit all Customer Data to Shiftlab or will obtain all necessary consents to do so and that it will process, use, and disclose Customer Data in accordance with applicable laws, regulations, rules, and orders.
9. Term. This Agreement commences on the commencement date (as set forth in the Order Form) and continues for the initial period and any renewal period(s) as specified in the Order Form, as applicable, unless terminated at an earlier date, as set forth below or if a party provides written notice of non-renewal to the other party at least 30 days prior to renewal of the initial period or any renewal period. Any termination of this Agreement terminates all rights to access the System and all obligations to perform Services, regardless of the term specified in the Order Form.
10. Termination. Either party may terminate this Agreement by written notice to the other party: (a) if the other party materially breaches this Agreement and fails to cure such breach within 15 days of receiving a written notice of breach from the non-breaching party; (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of any applicable laws; (c) a bankruptcy or other petition is filed, a notice is given, or an order is made, for the winding up of that other party; (d) an application is made to court, or an order is made, for the appointment of an administrator, receiver or trustee, or if an administrator, receiver or trustee is appointed over the other party; (e) a creditor of the other party attaches or takes possession of, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or (f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11. Effect of Termination. Upon termination or expiration of this Agreement, in addition to the parties’ other rights and remedies available at law or equity: (a) Customer will immediately cease use of the System and upon Shiftlab’s request, verify in writing to Shiftlab that it has destroyed, permanently erased or returned to Shiftlab any portion of Shiftlab’s Confidential Information in its possession or control (other than information stored in the course of normal backups that is rendered inaccessible); (b) Customer will pay any and all outstanding Fees as of the date of expiration or termination; and (c) all rights granted under this Agreement immediately terminate except for the license set forth in Section 8 (Customer Data). Sections 1 (Definitions), 7 (Ownership), 8 (Customer Data), 11 (Effect of Termination), 14.3 (Warranty Disclaimers), 15 (Limitations of Liability), 16 (Indemnification), 17 (Confidentiality) and 18 (General) survive termination or expiration of this Agreement.
12. Support Services.
12.1 User Setup. Customer will provide Shiftlab with a list of Users and a description of the type of access required for each User. Shiftlab will create an initial User ID and password for the Users appointed by Customer. After the initial setup and User IDs and passwords have been provided by Shiftlab, Customer will manage the User accounts.
12.2 Telephone Support. Shiftlab will use reasonable commercial efforts to respond to Customer’s requests for help operating the Software and general use questions during business hours (8 a.m. to 5 p.m., U.S. Eastern Standard Time, excluding recognized U.S. holidays), through Shiftlab’s support website at http://help.myshiftlab.com/ or via email at email@example.com
13. Maintenance Services. Shiftlab will make Upgrades and Enhancements available in the System as part of maintenance services. New functionality or major revisions to the Software may be available as separate Shiftlab products to which Customer can subscribe, when commercially available, for additional Fees.
14.1 Service Warranties. Shiftlab warrants that any Services provided will be performed in a professional manner and in accordance with generally recognized commercial practices and standards. Customer’s sole remedy for Shiftlab’s breach of this warranty is re-performance of the Services.
14.2 Limited Software Warranty. Shiftlab warrants to Customer that the System utilized by Customer under this Agreement will function substantially in accordance with the Software specifications on each Order Form. In the event of a breach of the warranty set forth in this Section 14.2, Shiftlab’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, is for Shiftlab to correct or replace, at no additional charge to Customer, any functionality of the System found to be defective.
14.3 Warranty Disclaimers. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. SHIFTLAB DOES NOT WARRANT THAT THE SYSTEM WILL MEET THE REQUIREMENTS OF CUSTOMER OR ANY USERS OR THAT THE OPERATION OR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE.
15. Limitations of Liability. EXCEPT FOR DAMAGES ARISING FROM THE PARTIES’ RESPECTIVE OBLIGATIONS SET FORTH IN SECTION 16 (Indemnification), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON CLAIMING UNDER OR THROUGH THE OTHER PARTY) UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOSS OF GOODWILL, WORK STOPPAGE, LOST OR CORRUPTED DATA, LOST PROFITS, LOST SAVINGS, LOST REBATES, LOST BUSINESS OR LOST OPPORTUNITY (WHETHER ARISING DIRECTLY OR INDIRECTLY) OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, TREBLE OR EXEMPLARY LOSSES OR DAMAGES, IRRESPECTIVE OF THE NATURE OR THEORY OF LIABILITY WHICH MAY GIVE RISE TO SUCH LOSSES OR DAMAGES (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OR WAS AWARE OF THE POSSIBILITY THEREOF. IN NO EVENT WILL SHIFTLAB’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SHIFTLAB IN THE LAST 12 MONTHS FOR THE SYSTEM COMPONENT OR SERVICES TO WHICH THE CLAIM RELATES. THESE LIMITATIONS OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT, AND SHIFTLAB WOULD NOT PERMIT CUSTOMER TO ACCESS THE SYSTEM OR RECEIVE SERVICES WITHOUT SUCH LIMITATIONS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW.
16.1 Shiftlab Obligations. Shiftlab will indemnify and defend Customer, and its directors, officers, shareholders and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to a claim that the System infringes the intellectual property rights of a third party.
16.2 Shiftlab Remedies. If the System becomes, or in Shiftlab’s opinion is likely to become, the subject of an infringement or misappropriation claim, Shiftlab may, at its sole option, and expense, either (a) procure for Customer the right to continue using the System; (b) replace or modify the System so that it becomes non-infringing or does not use the alleged misappropriated trade secrets; or (c) terminate Customer’s right to use the infringing System and give Customer a refund or credit for the unused Fees actually paid by Customer for the infringing components of the System less an allowance for the period of time Customer has used the System during the Term. This Section 16 states Customer’s sole and exclusive remedies, and Shiftlab’s entire liability, for any and all infringement and misappropriation claims and actions.
16.3 Exceptions. Shiftlab has no obligation with respect to any infringement or misappropriation claim based upon: (a) use of the System in combination with software or equipment not supplied or directed by Shiftlab if such claim would have been avoided by not combining such use; (b) unauthorized modification of the System if such claim would have been avoided by making no such modifications; (c) continued use of the Software or System after Shiftlab has notified Customer in writing that such claim would have been avoided by ceasing such use; or (d) the use of the System in violation of this Agreement, or in a manner for which it was not designed or contemplated, where such claim would have been avoided without such use.
16.4 Customer Obligations. Customer will indemnify and defend Shiftlab, and its affiliates and its and their directors, officers, shareholders and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to: (a) a claim alleging that use of Customer Data infringes the rights of (including, but not limited to, the rights of privacy or publicity), or has caused harm to, a third party or violates any applicable law, regulation, rule, or order; (b) Customer’s breach of Sections 2.2, 2.3 or 6 above; or (c) bodily injury or death of any person or damage to real and/or tangible personal property incurred while Shiftlab is performing the Services to the extent proximately caused by the gross negligence or willful misconduct of Customer, its personnel or agents in connection with the performance of the Services.
16.5 Conditions. The party seeking indemnification will (a) promptly give written notice of the claim to the other party; (b) give the other party sole control of the defense and settlement of the claim (provided that the party providing indemnification may not settle or defend any claim unless it unconditionally releases the other party of all liability); and (c) provide the other party all available information and assistance.
17.1 Definition. Any proprietary information or materials provided by one party to the other party pursuant to this Agreement is considered confidential and proprietary information, including, without limitation, business or technical information, databases, object code, source code and associated documentation in whatever form (“Confidential Information”) of the disclosing party. Without limiting the generality of the foregoing, the System, including without limitation, the Software, Shiftlab’s database, reports and forms (including all data therein except for the Customer Data), Upgrades and Enhancements and related documentation, are the Confidential Information of Shiftlab, and the Customer Data is the Confidential Information of Customer.
17.2 Use and Non-Disclosure. Each party will: (a) only use the other party’s Confidential Information as expressly permitted in this Agreement; (b) protect the other party’s Confidential Information from unauthorized use or disclosure using at least reasonable care; and (c) not disclose to any third party the other party’s Confidential Information except to those employees (and in Shiftlab’s case, subcontractors and agents) who have a need to know in connection with performing services under this Agreement and who are subject to obligations of confidentiality similar to this Section 17. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party promptly notifies the other party in writing and in advance of such disclosure to provide the other party the opportunity to contest or minimize the scope of disclosure.
17.3 Exceptions. The obligations and restrictions contained in this Section do not apply to information: (a) which is now or subsequently becomes publicly available other than by breach of this Agreement; (b) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from discloser; or (c) which is independently developed by the recipient without use of the other party’s Confidential Information.
18.1 Independent Contractor. Shiftlab acknowledges that it is an independent contractor, and neither Customer nor Shiftlab is or will be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, nor may either party represent to anyone that it has a right to do so.
18.2 Publicity Rights. Customer grants to Shiftlab a limited right to use Customer’s logo on Shiftlab’s website and marketing materials in the format and manner agreed by Customer, with such agreement not to be unreasonably withheld or delayed. Shiftlab may publish a press release relating to the relationship between the parties subject to Customer’s prior written consent, which consent will not be unreasonably withheld or delayed.
18.3 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, neither Shiftlab nor Customer will directly solicit employment of any employee of the other who is directly involved in the performance of this Agreement or the delivery, receipt, review or servicing of the System.
18.4 Governing Law; Jurisdiction. This Agreement will be construed and interpreted under the laws of the State of Indiana, excluding its conflicts of law doctrine. The parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any claim arising from or related to this Agreement must be brought in the state or federal courts located in Hamilton County, Indiana.
18.5 Interlocutory/Injunctive Relief. Each party recognizes that its failure to comply with the terms of Sections 2 (System), 7 (Ownership), 8 (Customer Data), 11 (Effect of Termination), 16 (Indemnification) or 17 (Confidentiality) above could cause irreparable damage to the other party. Therefore, if either party breaches or threatens to breach any of such terms of this Agreement, the injured party will be entitled to interlocutory or injunctive relief restraining such breach and/or a decree of specific performance, without showing or proving any actual damage, together with recovery of legal and other professional fees and expenses, and other costs incurred in obtaining such equitable relief.
18.6 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of Shiftlab, such consent which will not be unreasonably withheld, except that this Agreement may be assigned without consent in connection with a merger or sale of substantially all of the assets of the assigning party. Any prohibited assignment is void. Notwithstanding anything in this Section, Shiftlab may subcontract its obligations under this Agreement, provided that Shiftlab remains responsible for a subcontractor’s compliance with the terms of this Agreement and for the subcontractor’s performance of Shiftlab’s obligations. This Agreement will bind upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
18.7 Amendments; Waiver. This Agreement may be amended or modified as set forth in the Order Form. Any waiver of any breach of any term or any condition of this Agreement will not be construed as a waiver of any subsequent breach of any term or condition of this Agreement.
18.8 Notice. Any notice to be given by one party to the other under this Agreement will be in writing. Delivery will be by tracked express courier delivery service (delivery charge prepaid) to the applicable address set forth in the Order Form. The notice will be deemed to have been served on actual delivery.
18.9 Force Majeure. If performance of any obligation hereunder (except payment of monies due) is prevented, restricted or interfered with by any force majeure, including without limitation act of God; fire or other casualty or accident; strikes or labor disputes; war or other violence; unavailability of or delays in procuring materials, power or supplies; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental or intergovernmental agency or body; or any other act or condition whatsoever beyond the reasonable control of the party affected thereby, the party so affected will be excused from such performance during the time such prevention, restriction or interference persists.
18.10 Acknowledgment of Limitation of Liability. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT IT HAS REVIEWED AND FULLY UNDERSTANDS THE LIMITATIONS ON SHIFTLAB’S LIABILITY AND ON SHIFTLAB’S WARRANTY OBLIGATIONS UNDER SECTIONS 14.3 (WARRANTIES AND DISCLAIMERS) AND 15 (LIMITATIONS OF LIABILITY) ABOVE.
18.11 Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any respect or in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision hereof and such provision will be limited and construed in such jurisdiction as if such invalid, illegal or unenforceable term or provision were not contained herein.
18.12 Entire Agreement. This Agreement incorporates each of the attachments listed below, which together with any executed Order Forms constitute the entire and exclusive statement of the mutual agreement and understandings of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement. Further, in the event of any conflict between the terms of this Agreement and the terms of any Order Form, Customer purchase order or other ordering document, the terms of this Agreement shall prevail.