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Home My WebLink About20170548.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/ WORK SESSION REQUEST RE: Lablynx, Inc. Software Upgrade DATE: February 2, 2017 DEPARTMENT: Information Technology op PERSON REQUESTING: Ryan Rose tig%. Brief description of the problem/issue: Lablynx, Inc. provides laboratory management software to Weld County. The software is used by the Health Services department for managing various functions including resulting and tracking of lab samples and reporting. The attached agreement between the Board of Weld County Commissioners and Lablynx, Inc. provides funding for the required upgrade of the software. The requested amount for this service is $42,570.00. What options exist for the Board? (Include consequences, impacts, costs, etc. of options) This provider specializes in selling this software which is utilized by the Health Services department to conduct their daily businesses. Recommendation: Finance has reviewed and approves it. This is part of the IT 2017 annual work plan. It is recommended that the BUCC approve the agreement for the above specified amount. ADnlove Recommendation Julie Cozad, Chair Sean P. Conway Mike Freeman Steve Moreno Barbara Kirkmeyer Schedule Work Session yv,s3c 119n e&: ett6ek) a , c3 -a---- l t a2 Other/Comments: 2017-0548 -0-ccou, LabLynx ...where science gets ti Created Date: 1/31/2017 This quote good for 90 days from the above created date. LabLynx, Inc. PO Box 673966 Atlanta, GA 30006 www.labiynx.com Tel: (770) 859-1992 Fax: (877) 832-4129 (toll -free) Email: salesalablynx.com SA Number: WLD ELab7 Migration 2.3 Proposal Contact: Sheila Batson Company: Weld County Department of Public Health and Environment 1555 N. 17`h Avenue Greeley, CO 80631 Email: Sbatson@co.weld.co.us Tel: 970 304 6570 x2539 Summary This proposal is for the line item goods and services described herein. Terms and conditions are as stated in the Master Agreement below and in referenced items. The proposal is summarized here with the details in the Statement of Work (SOW) in the Services Authorization. Fees: The total cost of implementation is $42,570. All fees are in US$. Ongoing annual fee is the annual subscription fee. WebLIMS Application: The LabLynx LIMS application, Elab7, is a full featured, enterprise -class LIMS application that is very flexible and configurable. This proposal includes all ELab LIMS SQL modules as well as the LIMS Studio.Net report designer. The number of current users and whether licensed or annual subscription is shown below. Annual Maintenance and Support (MSW): The annual MSW includes support, updates and warranty as specified in the Maintenance agreement referred to below. Annual service & support hours included as shown based upon Support Level. Implementation Services: The fees for implementation are hourly with estimates as shown below. The per -item estimates are provided for information only. LabLynx will not exceed the total hours shown for the entire implementation without notifying the customer. Reasonable travel expenses incurred for onsite activities and other reimbursable expenses are not included and will be billed in addition as incurred. To initiate the contract: o Sign on last page of the Master Agreement below and return to LabLynx via fax or email or mail. o Provide a PO for the entire implementation fee. We will immediately invoice for one half the total fee which must be paid before we start work. The remainder will be due upon Go Live for the new LIMS. o Upfront payment to initiate the project is $21,285. Page 1 of 9 V [Liablynx ...where science gets IT SA Number: WLD ELab7 Migration 2.3 Services Authorization SOW - STATEMENT OF WORK OVERVIEW Currently your Lab is using LabLynx ELab6 Edition LIMS. Due to changes in technology, we will not be extending support for ELab6 beyond June 30, 2017. Basically, the ELab6 product is coming to its end of life. Based upon our discussions with you, we have an option going forward with our newest LIMS Product: ELab7. The biggest differences are that ELab7 is compatible with the 64 bit MS Windows Server versions and the user interface is cross browser, meaning it will function with IE9, 11, Firefox, Chrome and Safari (on a MAC). Now these browsers are constantly changing and perform differently on different OS's, but as a rule they will all work As you are a valued client and have been for many years, we are offering a migration for your current LIMS to our new ELab7 LIMS application at a minimal cost to you. This is a complete migration to a new LIMS in that the DB will be different, the WebApp and OS will be different and the client side user pages are cross browser. Listed below are the work tasks that we believe will need to be migrated. To the largest extent possible, we will be able to move the screen appearances, field labels, limits, etc. intact and with no input from the users. All 'jobs' will need to be re -implemented. This includes things like emailing reports, schedules firing, sending information to another system and the like. The reports in ELab 6 use our AR2 reporting tool. This tool will not run in a 64bit environment. We have a new report tool called LabVista (aka AR6). Each report will need to be modified, recreated or otherwise written new to work. In your case the reports have already been rendered in LabVista, so there is a minor work item to make sure the reports are correctly selectable in ELab7. All the other functionality will work just as it does now and we will work with you to convert any customizations you have placed in the application, if you have done so. The process to migrate will consist of setting up the new site, configuring screens, reports jobs and the like. We will then go through a detailed verification process and after you have signed off we will have a hard cutover and go live on the new LIMS. The last step will include moving any data from the old ELab6 DB to the new installation. As you will see below, we have waived the license fees and the annual maintenance fee will remain unchanged Description Quantity Unit Unit Price Toiiii Subscription, License and Service Plan ELab7 LIMS License: Perpetual licenses for concurrent users number shown. 10 User Waived $0.00 Annual Service Plan: Warranty, Maintenance and1 Annual Support, 16 hours included. year $6,000.00 $6,000.00 Annual Fees Year $6,000.00 Implementation Services — One-time fees Project Management: Project management, meetings and phone calls, online meetings and Kick off session. Includes: Implementation, configuration based upon input and any materials provided. 32 hour $165.00 $5,280.00 Page 2 of 9 iLiabLynx ...where science gets It SA Number: WLD ELab7 Migration 2.3 Additional Development Work: Create/move jobs, tasks, data warehouse, emailing of reports, portals, etc. 16 hour $165.00 $2,640.00 Report Conversion: Convert reports to LabVista report template tool. In addition convert all custom reports, ex. State reports to JavaScript. This is an estimate only. 32 hour $165.00 $5,280.00 Integrations and Interfaces: Create/move jobs, instrument procs, etc. as needed. 16 $2,640.00 hour $165.00 Custom Screens: Add to ELab7 all custom screens from ELab6. In this case there are quite a few custom screens and functions in the LIMS. 80 hour $165.00 $13,200.00 Data Migration: We will migrate previous samples and reports to the Data Warehouse and only move to the new DB the clients, tests, paths, picklists and the like. There will be db id issues to resolve here as well. 64 hour $165.00 $10,560.00 Verification and Go Live: upon completion of the configuration, migration, reports and jobs test entire system to verify functionality. Then move delta data from old DB to new and Go Live. 18 hour $165.00 $2,970.00 SERVICES TOTAL 258 $42,570.00 Page 3 of 9 AabLyTe.! n MASTER AGREEMENT SA Number: WLD ELab7 Migration 2.3 This Master Agreement ("Master Agreement") is made effective on the date signed below ("Effective Date"), by and between LabLynx, Inc. ("LabLynx"), a Georgia corporation, having its principal address as shown above and Company shown above ("Customer"), having its principal address as shown above (each, a "Party," collectively, the "Parties"). WHEREAS, the Parties are mutually desirous of entering into this Master Agreement. WHEREAS, Customer may, at times during the term of this Master Agreement, be a Covered Entity or a Business Associate under HIPAA as "HIPAA," "Covered Entity" and "Business Associate" are defined herein; WHEREAS, LabLynx and Customer are simultaneously becoming Parties to the agreements set forth in Section 1 herein, all available on the ]www.lablvnx.com] website (collectively referred to as the "Agreement" or "Agreements"), whereby LabLynx agrees to pertorm certain services for or on behalf of Customer; and WHEREAS, the relationship between l.abl.ynx and Customer may, at times during the term of this Master Agreement or those of any or all of the Agreements, be such that the Parties believe LabLynx is a Business Associate or Business Associate subcontractor of Customer, as well as a Covered Entity in its own right. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Patties enter into this Master Agreement with the intention of complying with the HIPAA Privacy and Security Rules (as defined herein) provision that a Covered Entity may disclose protected health information to a Business Associate, or a Business Associate to its subcontractor, and may allow a Business Associate or its subcontractor to create or receive Protected Health Information, as defined herein, on its behalf, if the Covered Entity or Business Associate obtains satisfactory assurances that the Business Associate or Business Associate subcontractor will appropriately safeguard the information, and otherwise agree as follows: 1. INCORPORATION OF OTHER AGREEMENTS. Each of following agreements are incorporated herein by reference and are made a part hereof as if fully set forth herein: • Proposal, Services Authorization and Each Statement of Work • Non -Disclosure Agreement b r.// DA.lablynx.corn • Services Agreement bterkS4.1eblytur.com • I .icense Agreement ISIp (/IA.labl% sx mm • Maintenance Agreement htro://MA.lablvnx.com • Hosting Agreement http://HA.lablynx.com Customer acknowledges receipt of each of the Agreements, that Customer has had an opportunity to review the each of the Agreements and hereby accepts and agrees to each of the Agreements and their respective terms and conditions, such acceptance and agreement to be evidenced by Customer's execution of this Master Agreement. 2. DEFINITIONS. • "Acceptance" means an agreement by the Customer ("Deliverable Acceptance Certificate") that the delivered Software, products or services ("Deliverables") meets the requirements of LabLynx's products and services as set forth in the Statement of Work The Acceptance period, if any, in which the Customer has to accept the Deliverables will be defined in the Statement of Work Work involved in debugging of installed software will not prevent Acceptance, so long as the Software performs substantially as set forth in the Statement of Work. • "Business Associate" has the meaning set forth in the HIPAA Privacy and Security Rules, including, without limitation, 45 C.F.R. § 160.103. "Change Authorization" means a change to the Statement of Work that describes any new functionality or modification to the Software. Customer must approve each Change prior to LabLynx making any modifications or changes to the Software. The costs associated with the request will also be a part of the Change Authorization. • "Covered Entity" has the meaning set forth in the HIPAA Privacy and Security Rules, including, without limitation, 45 C.F.R. § 160.103. • "Documentation" means all information that describes the design, development, installation, operation, and use of the Software or other products, in printed or electronic format. All Documentation is furnished per the terms of the License Agreement (as defined below). • "Electronic Protected Health Information" has the meaning set forth in 45 C.P.R. § 160.103. • "HIPAA" means the Administrative Simplification Provisions, Sections 261 through 264, of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as modified and amended by the Health Information Technology Page 4 of 9 1abLynx ...where nderxe gets rt SA Number: WLD ELab7 Migration 2.3 for Economic and Clinical Health ("HITECH") Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009, Public Law 111-5. • "Individual" has the meaning set forth in 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g). • "License Agreement" means the licensing terms and conditions required of Customer by LabLynx as set forth in the License Agreement "Maintenance Agreement" means the terms and conditions required of the Customer relative to the provision of maintaining LabLynx's Software as set forth in the License Agreement. • "Privacy and Security Rules" shall mean the Standards for "Privacy of Individually Identifiable Health Information," the "Security Standards for the Protection of Electronic Protected Health information," the "Notification in thc Case of Breach of Unsecured Protected Health Information," and compliance and enforcement Rules set out at 45 C.F.R. Parts 160 and 164. • "Project Completion" means when the work in the Statement of Work has been substantially completed. • 'Proprietary Information" means Software, products, Documentation, including manuals, and any other information confidential to Customer or LabLynx or its licensors. "Protected Health Information" has the meaning set forth in 45 C.F.R. § 160.103, limited to the information created or received by LabLynx from or on behalf of Customer. • "Required By Law" has the meaning set forth in 45 C.F.R. § 164.103. • "Secretary" shall mean the Secretary of the United States Department of Health and Human Services or the person to whom the authority involved has been delegated. • "Services" means a sub -portion of LabLynx's scope of work, as written in LabLynx's "Statement of Work" in the Services Authorization. • "Software" means LabLynx licensed software products, in executable form, including all modules, add -ins, customizations or other items listed in this Agreement or included in attachments to this Master Agreement described herein. All Software is furnished in accordance with the terms of the License Agreement. • `Statement of Work" is in the Services Authorization and may describe or reference appropriate Documentation, and quantify Software, products, and services to be provided to the Customer by LabLynx or its licensors. 3. OTHER DEFINED TERMS. Any defined term in this Master Agreement or the Agreements have the same definition and meaning in this Master Agreement and every other Agreement, and, if not defined herein, have the definition set forth in the HIPAA Privacy and Security Rules. 4. OBLIGATIONS OF LABLYNX To the extent it receives Protected Health Information or Electronic Protected Health Information from Customer pursuant to this Master Agreement or any of the Agreements, LabLynx agrees to: a. not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law. b. use appropriate safeguards and comply, where applicable, with subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Master Agreement_ c. mitigate, to the extent practicable, any harmful effect that is known to LabLynx of a use or disclosure of Protected Health Information by LabLynx or any subcontractor of LabLynx in violation of the requirements of this Master Agreement. d. report to Customer any use or disclosure of the Protected Health Information not provided for by this Master Agreement of which it becomes aware, including breathes of unsecured Protected Health Information as required by 45 C.F.R. § 164.410. e. in accordance with 45 C.F.R. § 164.502(eXI) and § 164.308(b)(2), to ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of LabLynx agree to the same restrictions and conditions that apply to LabLynx with respect to such information. f. make available Protected Health Information as necessary to satisfy Customer's obligations in accordance with 45 C.F.R. § 164.524. g. make available Protected Health Information for amendment and incorporate any amendment(s) to Protected Health Information in accordance with 45 C.F.R. § 164.526. h. unless otherwise prohibited by law, make internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by LabLynx on behalf of Customer available to the Secretary for purposes of the Secretary determining Customer's compliance with the Privacy and Security Rules. Page 5of9 �LabLynx .where Wit/MR gets IT SA Number: WLD ELab7 Migration 2.3 i. maintain and make available the information required to provide an accounting of disclosures of Protected Health information in accordance with 45 C.F.R. § 164.528. j. to the extent necessary to carry out one or more of Customer's obligations under 45 C.F.R. Part. 164, subpart E, comply with the requirements of subpart E pertaining to the Customer in the peribmiance of such obligations. 5. PERMITTED USES AND DISCLOSURES a. Except as otherwise limited in this Master Agreement or by other applicable law or agreement, if the Agreements permit, LabLynx may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of Customer as specified in the Agreements and for the purposes, and only for the purposes, set forth in the Agreements, provided that such use or disclosure: 1) would not violate the Privacy and Security Rules if done by Customer; or 2) would not violate the minimum necessary policies and procedures of the Customer. Without limiting the generality of the foregoing, b. Except as otherwise limited in this Master Agreement or other applicable law or agreements, if the Agreements permit, LabLynx may disclose Protected Health Information for LabLynx's own proper management or to carry out LabLynx's legal responsibilities, provided that: 1) the disclosures are Required By Law; or 2) LabLynx obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and will be used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. c. Except as otherwise limited in this Master Agreement or by other applicable law or agreements, if the Agreements permit, LabLynx may use Protected Health Information to provide data aggregation services to Customer as permitted by 45 C.F.R. § 164.504(ex2XiXB). d. Notwithstanding the foregoing provisions, LabLynx may not use or disclose Protected Health Information if the use or disclosure would violate any term of the Agreements or other applicable law or agreements. 6. TERM AND TERMINATION a. Term. This Master Agreement shall be effective as of the Effective Date stated above and shall terminate when the Agreements terminate. b. Termination for Cause. Upon Customer acquiring actual knowledge of a material breach of this Master Agreement by LabLynx, or of a breath of the Agreements that either has caused or may cause a breach of this Master Agreement, Customer may, at its option: I) Provide an opportunity for LabLynx to cure the breach or and the violation, and terminate this Master Agreement and services provided by LabLynx, to the extent permissible by law, if LabLynx does not cure the breath or end the violation within the time specified by Covered Entity, provided that the breath is curable and that by allowing time to cure, the Covered Entity does not itself breach, or cause the breach of the Privacy and Security Rules; 2) immediately terminate this Master Agreement and services provided by Labl,ynx, to the extent permissible by law; or 3) If neither termination nor cure is feasible, report the violation to the Secretary as provided in the Privacy and Security Rules. c. Post -Termination Obligations. 1) Except as provided in paragraph (2) of this section or in the Agreements or by other applicable law or agreements, upon termination of this Master Agreement and services provided by LabLynx, for any reason, I.abi,ynx shall return or destroy all Protected Health information received from Customer, or created or received by LabLynx on behalf of Customer. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of LabLynx. LabLynx shall retain no copies of the Protected Health Information, except insofar as is necessary to carry out post - termination responsibilities under the Agreements or for its own management and administration. 2) In the event that LabLynx reasonably determines that returning or destroying the Protected Health Information is not feasible, LabLynx shall provide to Customer notification of the conditions that make return or destruction not feasible. LabLynx shall extend the protections of this Master Agreement to such Protected Health information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as LabLynx maintains such Protected Health Information. 3) In the event of termination, LabLynx will continue to comply with sections 4 (a) and (b) of this Master Agreement with respect to non -disclosure and maintenance of appropriate safeguards to protect any Electronic Protected Health Information or Protected Health Information remaining in its possession, custody or control, and such obligations and any other obligations of LabLynx will be deemed to survive termination of this Master Agreement as long as such Electronic Protected Health Information or Protected Health information remains in i.abl.ynx's possession, custody or control. 7. LIMITED WARRANTY. i. LabLynx warrants that its products, services and Software when delivered to Customer are free from any and all software viruses and warrants for a period of 90 days after delivery of its products, services and Software that the physical media on which the copy of its products, Page 6 of 9 LrabLynx _wAefe science gets IT SA Number: WLD ELab7 Migration 2.3 services and Software are distributed will be free from defects in materials and workmanship under normal use (this limited warranty does not cover damage caused by improper use or neglect). ii. DISCLAIMER OF IMPLIED WARRANTIES: To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMLIED, AND LABLYNX DISCLAIMS AND CUSTOMER HEREBY WAIVES ANY AND ALL OTHER WARRANTIES AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, regardless of whether LabLynx knew or had reason to know of Customer's particular needs. No LabLynx dealer, distributor, agent, or employee may make any modification or addition to this warranty. LABLYNX SHALL NOT BE LIABLE FOR THE INADVERTENT CORRUPTION, ERASURE OF DATA RECEIVED ON OR USING THE SOFTWARE OR ON CUSTOMER'S COMPUTER, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT CAUSED DUE TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CUSTOMER'S COMPUTER OR THE SOFTWARE. PRIOR TO INSTALLATION OF THE SOFTWARE AND AS FREQUENTLY THEREAFTER AS CUSTOMER DEEMS BEST, LABLYNX STRONGLY URGES CUSTOMER TO BACKUP ALL DATA ON ITS COMPUTER. SOME STATES MAY NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, SO THAT THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. & LIMITATIONS ON LIABILITY CUSTOMER AGREES THAT REGARDLESS OF THE FORM OF ANY CLAIM, LABLYNX'S LIABILITY FOR ANY DAMAGES SHALL BE LIMITED IN ALL CASES TO THE AMOUNT PAID FOR ITS PRODUCTS, SERVICES OR SOFTWARE. CUSTOMER EXPRESSLY AGREES THAT IN NO EVENT SHALL LABLYNX BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF LABLYNX HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COST OF RECREATING DATA, COST OF CAPITAL, COST OF ANY SUBSTITUTE SOFTWARE, OR LOSSES CAUSED BY DELAY. LABLYNX SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM THE MODIFICATION, ALTERATION OR UNAUTHORIZED USE OF ITS PRODUCTS, SERVICES OR SOFTWARE OR FROM THE RESULTS OBTAINED OR SOUGHT TO BE OBTAINED BY CUSTOMER FROM USE THEREOF. TERMINATION OF THE AGREEMENT SHALL NOT RESULT IN LIABILITY OF LABLYNX TO CUSTOMER FOR DAMAGE, LOSS OR EXPENSE, AND CUSTOMER EXPRESSLY WAIVES SUCH CLAIMS. LABLYNX'S ENTIRE LIABILTY UNDER THE AGREEMENT AND CUSTOMER'S EXCLUSIVE REMEDY IS AS PROVIDED UNDER THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 4 ABOVE. 9. INDEMNITY. By Customer. To the extent permitted by law, Customer shall indemnify and defend LabLynx and its officers, directors, employees, agents, representatives and subcontractors from each and every demand, claim, loss, liability, or damage of any kind, whether in tort or contract, including reasonable attorney's fees actually incurred by reason of or in connection with the use of the Software, products, or services, other than for injury or damage caused by gross and willful misconduct by LabLynx or copyright infringement. To the extent permitted by law, Customer shall also indemnify LabLynx for any claim based on Customer's use or combination of the Software or products with any other software not provided by LabLynx, or on Customer's modification of the Software or products. By LabLynx. LabLynx shall indemnify and hold harmless Customer and its subsidiaries or affiliates under its control, and their officers, directors, employees, agents, representatives and subcontractors, against any and all losses, liabilities, judgments, awards and costs (including reasonable legal fees actually incurred and expenses) arising out of or related to any claim that Customer's use or possession of the Software or products, infringes or violates the copyright, trade secret or other proprietary right of any third Party. LabLynx shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Customer gives LabLynx prompt notice of any such claim of which it learns. No settlement that prevents Customer from continuing to use the Software or products as provided herein shall be made without Customer's prior written consent. In all events, Customer shall have the right to participate at its own expense in the defense of any such suit or proceeding through counsel of its own choosing. Copyright Infringement LabLynx shall, at its cost, defend or, at its sole option, settle any claim or suit brought against Customer on the issue that the Software infringes on a United States copyright, provided that Customer: (a) Notifies LabLynx promptly in writing of any such claim or suit; (b) gives LabLynx full information and assistance in settling and/or defending the suit; and (c) gives LabLynx full authority and control of the defense and/or settlement of any such action. LabLynx shall not be liable for any costs or expenses incurred: (a) By Customer without LabLynx's prior written authorization; (b) for any claim based on the use or combination of the Software with any other software or code not provided or not licensed by LabLynx; (c) for any claim based on Customer's modification of the Software; or (d) from Customer's use of other than the most current available version of the Software. If the Software becomes subject to a claim of infringement for which Labl.ynx may become liable, LabLynx may at its option: (I) Obtain for Customer the right to continue using the Software; (2) replace or modify the Software to make it non -infringing so long as the replacement or modification meets substantially similar specifications; or (3) terminate the License for the Software and refund the License Fee, prorated on the basis of sixty -months by the straight-line method of amortization from the Installation Date. Except for the remedy described in this Paragraph 6, LabLynx shall have no liability to Customer for copyright infringement, and shall in no instance have any liability to Customer for direct, indirect or consequential damages from infringement. LabLynx ...where science gets IT SA Number: WLD ELab7 Migration 2.3 10. CONTRACTUAL LIMITATION. No arbitration or other action under the Agreement, unless involving personal injury or death, shall be brought by either Party against the other Party more than one (1) year after the cause of action or claim arises. 11. Removed. Intentionally left blank i2. Removed. Intentionally left blank. 13. CONSTRUCTION. The Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Colorado. without giving effect to its provisions concerning conflicts of laws. 14. ENTIRE AGREEMENT. The Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings of the Parties hereto relating to the subject matter hereof; whether oral or written. 15. SEVERABILITY. if any clause or provision of the Agreement for any reason is or becomes invalid or unenforceable, the remaining parts of the Agreement shall not he affected therehy. 16. MODIFICATION. Except as otherwise expressly provided herein, no amendment, modification or alteration of the terms and conditions of the Agreement shall be binding upon the Parties hereto unless the same be in writing, dated subsequent to due date hereof and duly approved and executed by each of the Parties hereto. 17. BINDING EFFECT. The Agreement shall be binding on the Parties' successors, heirs and permitted assigns. 18. HEADINGS. The paragraph headings contained in the Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. 19. RELATIONSHIP OF TilE PARTIES. Nothing contained in the Agreement shall create or be deemed to create a relationship between Labl .ynx and Customer as joint venturers or partners. Other than the rights of Labl.ynx and Customer in the Agreement, neither Party has any ownership interest with respect to the other Party or the right or obligation to manage or control the other Party in any manner whatsoever. 20. NO WAIVER. The failure of any Party to seek redress for a breach of or to insist upon the strict performance of any provision of the Agreement shall not prevent a subsequent act, which would have originally constituted a breach, from having the effect of an original breach. No term or provision ofthe Agreement shall he deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by such Party. Failure to enforce any of the provisions of this Agreement shall not be construed as a waiver of future rights to enforce the same or other provisions of the Agreement. 21. ASSIGNMENT. Customer (and its permitted successors and assigns) will not sell, rent, sub -let, allow others to use, transfer or assign all or any part of any agreement with LabLynx, or license, products or services provided by LabLynx, without the prior express written consent of LabLynx. Any permitted transfer or assignment shall not relieve Customer of its obligations under any agreement with LabLynx. Any unauthorized transfer or assignment shall be null and void. 22. NOTICES. All notices under the Agreement shall be in writing and shall be deemed to have been duly given if delivered or mailed certified or registered mail to the Party at the address in this Master Agreement or at such other address as any Party hereto shall designate to the other Party in writing. 23. FORCE MAJEURE. Neither Party shall be in default or otherwise liable to the extent any delay or failure of delivery arises out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, terrorism, national emergency, fires, riots, wars, embargoes, or communications failures; provided, however, that lack of funds or failure to make payment of any all sums due by Customer to I abi.ynx shall in no event be deemed to be a reason beyond a Party's reasonable control. 24. ELECTRONIC SIGNATURES. In accordance with the Electronic Signatures in Global and National Commerce Act ("ESIGN"), IS United States Code Section 7001, et sq., and the Uniform Electronic Transactions Act, the Panics hereto consent and agree that contracts and agreements among them or which relate to any transaction among the Parties hereto may be signed by "electronic signature" as defined in ESIGN and the Uniform Electronic Transactions Act. Customer prior to signing this Master Agreement by electronic signature has (i) the right or option to have this Master Agreement and the accompanying agreements available in paper or in non -electronic form and (ii) the right upon written notice to LabLynx at the above address (or such other address as LabLynx furnishes in writing to Customer) to withdraw its consent to sign further agreements by electronic signature. The withdrawal of Customer's consent to sign further agreements by electronic signature shall not affect the validity of this Master Agreement and the Agreements. This Master Agreement, once signed, will be provided to Customer in pdf, which may be accessed by Customer using Adobe) or Adobe) compatible software. 25. REPRESENTATION AND WARRANTY OF AUTHORITY. Each of the Parties signing below represent and warrant to the other Party that the persor or persons signing this Agreement on behalf of such Party has the full right, power and authority to enter into and sign this Agreement on such Party's behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Master Agreement. 26. MULTIPLE COUNTERPARTS. This Master Agreement may be executed in multiple counterparts which when taken together shall constitute an original agreement. 27. FUND AVAILABILITY. Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. Execution of this Agreement by County does not create an obligation on the part of County to expend funds not otherwise appropriated in each succeeding year. In Witness Whereof; the undersigned Parties have entered into this Agreement on the date set forth below. Customer: LabLynx: Page 8 of 9 /'LabLynx . where W«Ks gets n . science IT• r71'1 t1\ rr!i By: Name: Title: 20 ATTEST: " " i29;11 Weld C un v,Clerk to the : eard BY: Deputy Cler o the Board SA Number: WLD ELab7 Migration 2.3 0 LabLynx, Inc. / / By, : John n It Jon 17 Title: President .20 17 Date: February 1 Peg* 9 of 9 BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Julie Cozad, Chair ED AS TOSU FEB 2017 d official or s epartment Head 020/ 7- 0591 Non -Disclosure Agreement (NDA) This Non -Disclosure Agreement is applicable in the event Customer and LabLynx (both as defined in the Master Agreement) have entered into a Master Agreement, which incorporates the General Terms and Conditions, among other agreements listed therein. Without incorporation of the General Terms and Conditions (which are incorporated herein and made a part hereof), this Non -Disclosure Agreement is inapplicable. In order to enable Customer and LabLynx to identify and pursue business opportunities related to the software developed by LabLynx, it may be necessary for both parties to disclose to the other party certain proprietary information, including financial, operations, marketing, computer programs, documentation, data, trade secrets, pricing, systems, methodology, know-how, and other commercial knowledge relating to LabLynx, its affiliates and their respective operations, customers and finances (the "Proprietary Information"). As used in this document ("Agreement"), the party disclosing Proprietary Information is the "Disclosing Party" and the party receiving the Proprietary Information is the "Recipient." In connection therewith, the parties agree as follows: (a) in consideration of receiving disclosures of Proprietary Information, the Recipient agrees to keep Proprietary Information as confidential and not to disclose the same to third parties. Proprietary Information includes any information or documents marked as "Proprietary" or "Confidential" or which otherwise, under all the circumstances, ought reasonably to be treated as confidential or proprietary hereunder. (b) Proprietary Information shall not, however, include information that (i) was known by the Recipient at the time it was received from someone who had a right to disclose such information or is hereafter independently developed by each party without reference to any Proprietary Information; (ii) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the Disclosing Party or the Recipient; (iii) is made known to the Recipient by a third person who does not impose any obligation of confidence on either LabLynx or the Customer with respect to such information; or (iv) is approved for disclosure by prior written consent of the Disclosing Party. Recipient may release Proprietary Information if such Proprietary Information is required to be disclosed pursuant to governmental authority, law, regulation, duly authorized subpoena or court order, or professional requirements, whereupon each party shall provide notice to the other party prior to such disclosure. (c) The Recipient shall disclose or reveal the existence or the content of any Proprietary Information only to those of its employees or affiliates who are involved in discussions with the Disclosing Party, and who have been informed to hold such Proprietary Information in confidence in accordance with the non- disclosure and confidentiality obligations hereof. (d) The Recipient shall use the Proprietary Information only for purposes of the discussions hereunder and developing the terms under which the Business Opportunities if any shall be pursued. Upon the termination or expiration of this Agreement for any reason, LabLynx and Customer shall return to each other any document or material in tangible form and all copies thereof in its possession comprising Proprietary Information and shall destroy any document or other material in electronic form that contains Proprietary Information. Both LabLynx and Customer acknowledge that any breach by it of its obligations under this Agreement could cause substantial and irreparable harm to the other party and that, in such case, money damages would be an inadequate remedy therefore. Accordingly, LabLynx and Customer acknowledge and agree that the damaged party would he entitled, in addition to any other available remedies, to seek an injunction, specific performance and/or equitable relief to prevent any such breach. This Agreement shall not obligate the Customer or LabLynx to develop any kind of business alliance. Services Agreement This Services Agreement is applicable in the event Customer and LabLynx (both as defined in the Master Agreement) have entered into a Master Agreement, which incorporates the General Terms and Conditions, among other agreements listed therein. Without incorporation of the General Terms and Conditions (which are incorporated herein and made a part hereof), this Services Agreement is inapplicable. 1. Services LabLynx may provide Customer with Services for the licensed Software, provided that Customer pays LabLynx for such Services at LabLynx's then current professional Services rate. These professional Services may include, but are not limited to: °Configuration °Customization °Custom Development °Custom Report Development °Data Mapping °Instrument Interfacing °System Testing and Validation °Training °Consulting 2. Customer Responsibilities Customer assumes responsibility for the selection of the Software to achieve Customer's intended results, and for use and results obtained from the Software. Because software is inherently complex and may not be completely free of errors, Customer is advised to validate all systems, the Software, other software programs used by Customer, and configurations and customizations of the Software delivered to Customer to ensure that the Software and delivered products match the specifications approved by Customer. Customer shall be solely responsible for backing up all its data prior to installation of the Software. Customer agrees that regardless of the form of any claim, LabLynx's liability for any damages shall be limited in all cases to the amount paid for the materials and governed specifically by the Agreement. LabLynx shall not be responsible for any damages or expenses resulting from the modification, alteration or unauthorized use of the Software or from the results obtained by Customer from such use. Termination of the Agreement shall not result in liability of LabLynx to Customer for damage, loss or expense, and Customer expressly waives such claims. Customer is responsible for providing support for LabLynx during the execution of the work. This support includes, but is not necessarily limited to: °Assisting and cooperating with LabLynx in completing the work in a timely and effective manner. °Providing decisions and progress reviews needed. °Providing access to the Customer's files and facilities as needed. °Appointing key individuals in the Customer's organization to interface with LabLynx. °Arranging and holding any required meetings promptly. °Adhering to Lab Lynx's chain of command set up for the project, unless such adherence appears unreasonable under particular circumstances. °Giving prompt written notice to LabLynx whenever Customer becomes aware of any event, occurrence, condition or circumstance which may substantially affect LabLynx's performance of services or LabLynx's payment under this Agreement. °Refraining from interfering, delaying or otherwise negatively impacting LabLynx's work. °Participating in and adhering to the formation and issuance of the project schedule. °Payment of LabLynx's invoices. °Timely performance of all the above. 3. LabLynx's Responsibilities It will be LabLynx's responsibility to be responsive to the Customer's requests and to perform all authorized work in a professional manner, in accordance with the Statement of Work. 4. Services Authorization i. Services Authorization: Upon acceptance by the Customer, the fully executed Services Authorization shall provide immediate authorization for LabLynx to provide goods and services as set forth in the Statement of Work and other documents and agreements referenced by the Services Authorization. ii. Statement of Work: The Statement of Work shall describe and reference appropriate Documentation for the Software, Deliverables and other products, and services to be provided to the Customer by LabLynx or its licensors. The Statement of Work may also include terms and conditions not specified in this document. The most recent revision of the Statement of Work will always take precedence over any previous revisions of the Statements of Work, including terms and conditions. iii. Pricing: The pricing and billing plan are provided in the Statement of Work. 5. Changes Customer may request that modifications or additions be made to the Statement of Work. Customer may request a Change Authorization describing the new functionality or modification or deviation to the applicable Statement of Work. The costs associated with the request will also be a part of the Change Authorization cost. LabLynx will not begin work on any Change Authorization until written authorization is provided by the Customer. 6. Deliverables and Payment i. Services: a. LabLynx's Services are defined in the Statement of Work (sometimes "SOW"). b. Pricing of Services are in the SOW. c. Customer will be given the number of business days shown in the project schedule of the SOW, to review, comment, accept, or reject Deliverables. Any more time taken than that by the Customer will result in the extension of the Project Schedule as shown in the SOW, if the deliverable is a critical path deliverable. ii. Payment: Customer agrees to pay LabLynx in accordance with the schedule and terms specified in the SOW. The invoicing plan is provided in the Statement of Work for the project. Key provisions of the payment procedure are as follows: a. LabLynx invoices will be submitted to Customer. b. Customer is to promptly notify LabLynx in writing of any LabLynx invoice that is being withheld for payment for any reason whatsoever. c. Payments not received within the specified time can cause work and the project schedule to be suspended until payment is received. d. All Software and changes, customizations and configurations remain the property of LabLynx until the Customer has paid the full amount of the invoice, including any applicable late charges and interest. Customer acknowledges that LabLynx has a lien on all Services in the amount of any unpaid balances by the Customer. Such Liens may involve injunctive relief against the Customer to prevent the use of those Services until all unpaid balances are paid in full, in the event that unpaid balances are over sixty (60) days from the invoice date. e. The Customer is granted a temporary License ("Temporary License") to the Software and all associated Services, where Software and Services are defined in the Agreement. The Temporary License is until all outstanding invoices of LabLynx have been paid in full, along with any applicable late fees and interest. f. In the event the Agreement is terminated by either the Customer or LabLynx for any reason whatsoever, and LabLynx has not been paid in full for all outstanding invoices, then the Temporary License granted to the Customer is revoked and LabLynx will provide written notice to the Customer to cease all use of the Software and Services and destroy all copies and installations of that Software or any associated Services. Failure of Customer to comply with this will result in the breach of the License Agreement and will result in legal action afforded by the Copyright Laws of the United States and any other legal rights of LabLynx. 7. Default If Customer fails to observe any of the terms and conditions of the Agreement, LabLynx shall have the right to bring an action for damages, or to bring an action to restrain and enjoin Customer from further actions constituting a default under the Agreement, or to terminate the Agreement. None of these remedies shall be exclusive and they shall be in addition to any other remedies LabLynx may have. If LabLynx is required to bring an action or proceeding to enforce the terms of this Agreement and/or the associated Software license and prevails in that action or proceeding, LabLynx shall be entitled to recover, in addition to any other relief, reasonable attorneys' fees actually incurred and costs. 8. Termination of Agreement Written Notice: It is expressly understood and agreed that either party may terminate this Agreement at any time by giving thirty (30) days' notice in writing either personally, or by U.S. certified mail, return receipt requested, to the principal office of the initiating party. LabLynx may also terminate this Agreement in the event of non-payment by Customer of LabLynx's invoices or in the event Customer otherwise substantially fails to fulfill its obligations under the Agreement. If the Agreement is terminated for any cause, or by either party, LabLynx is to receive payment for all work performed and expenses incurred up to the date of termination. License Agreement This License Agreement is applicable in the event Customer and LabLynx (both as defined in the Master Agreement) have entered into a Master Agreement, which incorporates the General Terms and Conditions, among other agreements listed therein. Without incorporation of the General Terms and Conditions (which are incorporated herein and made a part hereof), this License Agreement is inapplicable. LabLynx grants to Customer and Customer accepts a non-exclusive limited license to use the software ("Software") with the following limitations ("License"): 1. Grant of License 1. The Software is licensed to the Customer in accordance to the terms shown in the SOW. Except as provided in Paragraph 5, Customer may not copy the Software, except for backup purposes. The Software may be used only by Customer and only for Customer's own benefit. Customer may not use the Software to provide commercial service bureau functions or to provide laboratory management data services to third parties on a commercial basis. 2. Customer may not sublicense, rent, distribute, lease, transfer or otherwise assign Customer's rights in the Software, except as may be specified herein. Customer may not timeshare or rent the Software. 3. Customer may not change, alter or modify the LabLynx Software, create derivative works, or translate, reverse assemble, reverse compile, disassemble, or in any way reverse engineer the Software. 4. Any updates or new versions, modules or add -ins received by Customer from LabLynx or an authorized LabLynx dealer, or any additional copies licensed pursuant to the terms of this LICENSE AGREEMENT, shall also become part of the Software and shall be governed by the terms of this LICENSE AGREEMENT. 5. All rights not expressly granted are reserved to LabLynx, including the right to sell or give licenses to use the Software to other end -users. 6. Customer may not export or re-export the Software or any copy or adaptation in violation of any U.S. Export Administration regulation or other applicable regulation. 7. Customer may not publish the results of any Validation or tests run on the Software. 8. Customer may not change or alter LabLynx's copyright notices or LabLynx's "LabLynx" trademark. 9. Any defined terms herein shall have the meanings ascribed to them in the Sale Authorization. 10. Customer shall be solely responsible for data conversion, data entry and verification of data, unless otherwise agreed to by the parties in writing. 2. License Fee 1. Customer agrees to pay to LabLynx a tee ("License Fee) for the License to use the Software as specified in the Statement of Work in the Services Agreement, as may be amended by any Change Order. 2. Neither the License Fee nor any additional License fee includes rights to new versions, updates or upgrades, installation of the Software, the setting up, converting or inputting any of Customer's data, or other products or support services available from LabLynx. 3. Rights in Materials I . Customer acknowledges that the Software and any copies or derivatives thereof are the sole and exclusive property of LabLynx, regardless of the form or media in which the original or copies may exist. Customer further acknowledges that the Software, including, without limitation, the code, logic, structure of the Software, and the Documentation, constitute valuable trade secrets belonging to LabLynx and that all information related to the nature and use of the Software is confidential. Customer agrees to secure and protect the Software in a manner consistent with the maintenance of LabLynx's rights in the Software as set forth in this License Agreement so that LabLynx's rights in Software are not impaired in any way. By accepting this License Agreement and the License, Customer does not become the owner of the Software or any part thereof, but does have the right to use the Software as outlined and limited in this License Agreement. 4. Copyright I . The Software is copyrighted, and unauthorized copying of the Software, including Software which has been modified or included with other software, or of any updates, modifications or new versions of the Software or of the Documentation, is expressly forbidden. Customer agrees not to transfer the Software in any form to any person without the prior written consent of LabLynx. Customer will use its best efforts and take all reasonable steps to protect the Software from unauthorized reproduction, publication, disclosure or distribution. 5. Copies, Replacements and Alterations Customer agrees not to copy the Software received from LabLynx, including any updates, modifications or new versions of the Software, in whole or in part, except under the following specific conditions: 1. Copies of the Software may be made for backup purposes, including but not limited to routine system backups, or when copying is an essential step in the authorized use of the Software with a backup computer or processor so long as the copies are used in no other manner and so long as use on the backup computer or processor is discontinued when the original or a replacement computer or processor becomes operable. 2. Copies of the Software may be made in conjunction with storage of archival or historical data sets created by the Software (in accordance with this License Agreement) so that the data within the data sets so created may be retrieved utilizing the Software. 3. If additional copies of the Software are needed, Customer may obtain them by paying the then -current license fee, as applicable, for each additional copy. 4. If Customer should damage the media on which the Software is recorded by accident, misuse, or otherwise, Customer may contact LabLynx and request replacement pursuant to LabLynx's then -current replacement policy and fee, if applicable. Under no circumstances will LabLynx provide replacement media for other than its most current version, including all updates. If Customer is not using the most current version, an additional fee will be added to the replacement fee to provide for a migration pathway, if possible, to the most current version. 5. The grant of the License specifically prohibits any changes or modifications to be made in, or derivatives produced from, the Software COTS version. If Customer should breach this provision of this License Agreement, in addition to any other remedies LabLynx has available, it is hereby agreed that LabLynx shall own the full rights to the changes, modifications or derivatives and Customer shall execute any necessary documents to provide evidence of this ownership. 6. Customer may install the Software on a Test Server and/or a Backup Server. Neither of these Servers may be used for production purposes. They may only be used for testing new releases of the Software or configurations and customizations of the software and for the purpose of allowing a Backup Server to be available in the event that the production server goes off-line. Neither the Test Server nor Backup Server may be used as part of production while Users are working against the Production Server. 6. Support and Maintenance See additional Maintenance Agreement, if specified in the Services Authorization. 7. Customer Responsibility Customer assumes responsibility for the selection of the Software to achieve Customer's intended results, and for use and results obtained from the Software. Because software is inherently complex and may not be completely free of errors, Customer is advised to validate Customer's work. Customer agrees that it bears the risk of failure or inaccuracy in the performance of the Software. Customer acknowledges that Customer's use of the Software to monitor and manage laboratory processes will be based on data supplied by Customer, which may prove to be inaccurate. 8. U.S. Government Department and Agency Terms I. If Customer is the U. S. Department of Defense ("DOD") as defined in DOD FAR Supplement ("DFARS) 202.1, Customer agrees notwithstanding anything to the contrary in this License Agreement that: I . the Software is delivered as "Commercial Computer Software," as defined in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013; 2. the Software has been developed entirely at private expense; 3. Customer is solely responsible for any effects or costs in connection with modifications of the software independently made by or for DOD including, but not limited to, impacts on compatibility or support; 4. the Software is deemed to be adequately marked when the legend below is affixed to the commercial computer software or its storage media perceptible directly or with the aid of a machine or device, RESTRICTED RIGI ITS LEGEND Use, duplication or disclosure by the Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227- 7013. Contractor is LabLynx, Inc., P.O. Box 724207, Atlanta, GA, 31139; and 5. for the purposes of this section, DFARS shall include any applicable successor or replacement clause or regulation. 2. If Customer is a U. S. Government Agency other than the DOD, Customer agrees notwithstanding anything to the contrary in this License Agreement that: 1. the Software is delivered as "Restricted Computer Software," as defined in the Commercial Computer Software — Restricted Rights clause at FAR 52.227-19; 2. the Software has been developed entirely at private expense; 3. Customer is solely responsible for any effects or costs in connection with modifications of the software independently made by or for the Government including, but not limited to, impacts on compatibility or support; 4. the Software is deemed to be adequately marked when the legend below is affixed to the "restricted computer software" or its storage media: RESTRICTED RIGHTS LEGEND LABLYNX SOFTWARE LICENSE TERMS. Notice — Notwithstanding any other lease or License Agreement that may pertain to, or accompany the delivery of, this restricted computer software, the rights of the Government regarding its use, reproduction and disclosure are as set forth in subparagraph (c) (2) of the Commercial Computer Software — Restricted Rights clause at FAR 52-227-19. Contractor is LabLynx, Inc., P.O. Box 673966, Marietta, GA 30006. 9. Third Party Software The Software may integrate with other software supplied to you by third parties ("Third Party Software"). LabLynx makes no warranty and disclaims any warranty regarding the functionality of its Software with such Third Party Software. Should Customer have any claims, including breach of warranty claims, against those third parties, Customer agrees to pursue those claims against such third parties and not LabLynx. ALL THIRD PARTY SOFTWARE OFFERED FOR USE WITH LABLYNX'S SOFTWARE IS PROVIDED TO CUSTOMER THROUGH CUSTOMER'S THIRD PARTY SOFTWARE PROVIDER(S) AND SHALL BE SUBJECT TO CUSTOMER'S AGREEMENT WITH SUCH THIRD PARTY SOFTWARE PROVIDER(S). LABLYNX SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY CLAIMING BY OR THROUGH CUSTOMER, FOR ANY ISSUE RELATING TO THIRD PARTY SOFTWARE INCLUDING, WITHOUT LIMITATION, THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SOFTWARE OR THE INTEROPERABILITY OR CONTINUED INOPERABILITY OF THE THIRD PARTY SOFTWARE WITH LABLYNX'S SOFTWARE. 10. Data Verification Customer is solely responsible for data entry and verification of its data. Maintenance Agreement This Maintenance Agreement is applicable in the event Customer and LabLynx (both as defined in the Master Agreement) have entered into a Master Agreement, which incorporates the General Terms and Conditions, among other agreements listed therein. Without incorporation of the General Terms and Conditions (which are incorporated herein and made a part hereof), this Maintenance Agreement is inapplicable. 1. Introduction This Maintenance Agreement is intended to be supplementary to the License Agreement between LabLynx and Customer. The terms and conditions of the License Agreement and all amendments thereto are hereby acknowledged and reaffirmed. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the License Agreement. 2. Maintenance 1. Updates: During the Initial or Renewal Maintenance Term(s), LabLynx will furnish all enhancements, updates or releases of the Licensed Software (hereinafter "Updates"), and related information and documentation. Updates are released, at the discretion of LabLynx, to provide new features and enhancements to the licensed Software. Updates are also released as needed to correct any significant Software Functionality Related Issues. 2. Maintenance Support: During the Initial Maintenance Term and any Renewal Maintenance Term(s), LabLynx shall provide the Maintenance Support set forth in this section to Customer for recurring failure of the Software to perform in conformity with its specifications ("Software Functionality Related Issues"). The Maintenance Support Services to be provided by LabLynx pursuant to this Maintenance Agreement are as follows: 1. Help Desk: LabLynx will provide Customer with reasonable help desk assistance during the Support Hours regarding the identification, diagnosis and correction of Software Functionality Related Issues. LabLynx will attempt to resolve any Maintenance Support questions posed by Customer. If LabLynx determines and Customer agrees that it would be appropriate to do so, LabLynx may defer resolution of a Maintenance Support question until a later time. At its discretion, and with the consent of Customer, LabLynx may provide Customer with help desk assistance during times other than the Support Hours. 2. Home Page: LabLynx will provide Customer with access to Maintenance Support information via LabLynx's web site at www.LabLynx.com and affiliated sites. 3. Support Hours: The Support Hours are: Monday through Friday, 8:00 a.m. through 5:00 p.m. (Eastern Time), excluding the LabLynx, Inc. holidays as defined each December. The most recent LabLynx holiday schedule is available under the Support section of the LabLynx web site, www.LabLynx.com. 4. Maintenance Support Procedure: 1. Notification: To obtain Maintenance Support for Software Functionality Related Issues, Customer must notify LabLynx immediately of any suspected Software Functionality Related Issue and must provide LabLynx with reasonable detail of the nature of and circumstances surrounding the issue. Software Functionality Related Issue is an issue related to the parameters addressed by the Validation Test. Customer agrees that all Maintenance Support requests will be made to the LabLynx telephone number, 770-859-1992;; or sent by e-mail to support@LabLynx.com or entered online at the LabLynx Help Desk at www.mylablvnx,com 2. Remote Diagnostics: LabLynx may perform remote diagnostics to determine the existence and nature of a Software Functionality Related Issue. 3. Software Functionality Related Issues Corrections: LabLynx will make reasonable efforts to correct any Software Functionality Related Issues that Customer reports to LabLynx. Customer will promptly provide LabLynx with all information requested by LabLynx to reproduce such issues. LabLynx will provide Customer with a specific action plan for addressing the issue, including a good faith estimate of the time required to correct and resolve such issue. If Lab Lynx reasonably believes that a problem reported by Customer may not be due to a Software Functionality Related Issue, LabLynx will so notify Customer. At that time, Customer may: (a) Instruct LabLynx to proceed with problem determination at Customer's possible expense; or (b) instruct LabLynx that Customer does not wish the problem pursued at Customer's possible expense. If Customer requests that LabLynx proceed with problem determination at its possible expense and LabLynx reasonably determines that the issue was not due to a Software Functionality Related Issue, LabLynx shall immediately stop further work and so inform Customer, and Customer shall pay LabLynx, at LabLynx's then -current Support Services rates, for all work performed in connection with such determination, plus expenses incurred in accordance with LabLynx's expense policies. 4. Remote Correction: LabLynx may perform any Software Functionality Related Issues correction work via remote telecommunications. If such remote support is unavailable, in LabLynx's opinion, to satisfactorily resolve the confirmed error, LabLynx shall provide such Maintenance Support at Customer's premises. All expenses incurred for on -site Maintenance Support shall be reimbursable by Customer in accordance with Customer's expense policies. No on site work will be performed by LabLynx without written authorization by Customer. 5. Response Times: LabLynx will use reasonable commercial efforts to communicate with Customer, by telephone or e-mail, regarding the Software Functionality Related Issues that Customer reports to LabLynx during the Support Hours. During Support Hours, LabLynx will respond within four (4) hours of notification. After Support Hours and on weekends, LabLynx will respond to a notification within four (4) hours on the following business day. For purposes of this MAINTENANCE AGREEMENT, a "response" means LabLynx's acknowledgment of a problem, and does not necessarily mean that a resolution will be achieved. 6. Limitations on LabLynx's Maintenance Support Obligations: Notwithstanding anything to the contrary elsewhere in this MAINTENANCE AGREEMENT, LabLynx will have no obligation to provide any Maintenance Support to Customer if: 1. Such Maintenance Support relates to or involves any products, data, features, devices or equipment not provided by LabLynx; 2. Customer or a third party has altered or modified any portion of the Licensed Software in any manner without the prior written consent of LabLynx; 3. Customer has not installed or used the Licensed Software in accordance with instructions provided by LabLynx; 4. Customer has failed to replace earlier versions of the Licensed Software with "Updates" that are applicable to the reported issue and provided to Customer; 5. A party other than LabLynx (or a party authorized by LabLynx) has serviced the Licensed Software and the Licensed Software no longer conforms to its specifications; or 6. Customer is not in full compliance with the other terms of this MAINTENANCE AGREEMENT, the terms of the EULA, or any other agreement between LabLynx and Customer. 7. LabLynx's Maintenance Support obligations under this MAINTENANCE AGREEMENT shall not include hardware, electrical work, telephone line or internet access work, interconnection work, or the installation or repair of accessories, alterations, parts or devices. 5. Charges and Term: 1. Maintenance Fee: In consideration for the Updates and Maintenance Support, Customer shall pay LabLynx an annual Maintenance Fee. Customer shall pay LabLynx the Maintenance Fee on or before the first day following the completion of the Initial Term. 2. Initial Maintenance Term: One (1) Year following the Validation Date. 3. Renewal Maintenance Term: Available in One (1) Year increments following the completion of the Initial Term. 3. 1. Support Hours: The Support Hours are as follows: Monday through Friday, 8:00 a.m, through 5:00 p.m. (Eastern Time), excluding the LabLynx, Inc. holidays as defined each December. The most recent LabLynx holiday schedule is available under the Support section of the LabLynx web site, support@LabLynx.com. 2. Charges and Term: Professional Services Support Rate: Professional Services Support is billed as per the Terms and Conditions of the Statement of Work. 4. Customer Obligation Customer shall designate one employee and one alternate as its Support Contacts to be generally available during the Support Hours to confer with LabLynx regarding Software Functionality Related Issues and other Support related issues. Customer shall notify LabLynx immediately of any changes in the persons designated as Support Contacts. LabLynx will provide Support only to Customer's Support Contacts. 5. Termination LabLynx may terminate this Maintenance Agreement (a) immediately upon breach of this Maintenance Agreement by Customer, which breach remains uncured fifteen (IS) days after written notice thereof from LabLynx: or (b) upon no less than ninety (90) days prior written notice to Customer. Notwithstanding anything to the contrary herein, this Maintenance Agreement shall automatically terminate upon termination of the License Agreement. 6. End of Life At any time after three (3) years from the commencement of a License or Maintenance Agreement, whichever is earlier, LabLynx in its sole discretion may conclude that Software has reached its end of life ("End of Life"). In such event, LabLynx may provide notice to Customer that the Software has reached its end of life ("End of Life Notice"). Notwithstanding any contrary provision contained in any agreement among LabLynx and Customer, including this Maintenance Agreement, upon LabLynx providing such End of Life Notice to Customer or upon such date or time period contained in the End of Life Notice, then the Software covered by the End of Life Notice shall no longer be maintained or supported by LabLynx. This means that LabLynx shall no longer provide maintenance, support, or be able to respond to questions regarding the Software. Upon the furnishing an End of Life Notice to Customer, technical or other maintenance and support shall no longer be renewed. If an End of Life Notice is provided during the term of this Maintenance Agreement, notwithstanding any contrary provision in this agreement, such term shall end upon the providing of the End of Life Notice or such date or time period contained in the End of Life Notice. If LabLynx provides Customer with an End of Life Notice during the term of this Maintenance Agreement for which maintenance or technical support has been pre -paid by Customer, then LabLynx shall refund Customer a pro -rata portion of maintenance fees which have been pre -paid. Such refund of unused maintenance fees shall be pro -rata based on the number of days from the effective date of such End of Life Notice to the end of the time period for which maintenance fees have been pre -paid by Customer. Hosting Agreement This Hosting Agreement is applicable in the event Customer and LabLynx (both as defined in the Master Agreement) have entered into a Master Agreement, which incorporates the General Terms and Conditions, among other agreements listed therein. Without incorporation of the General Terms and Conditions (which are incorporated herein and made a part hereof), this Hosting Agreement is inapplicable. 1. Introduction Customer engages LabLynx to host Customer's data ("Data") as provided in this Hosting Agreement. To carry out this purpose, the parties agree as follows: 2. Overview Data Hosting LabLynx will provide dedicated or shared server computers with an Internet address for storage and access of Customer's Data utilizing certain of LabLynx's software programs and other open source software programs. Customer's Data must be "server -ready." During the term of this Agreement, LabLynx provides Customer a non-exclusive license for Customer to use LabLynx's software programs on the site maintained by LabLynx. Account Updates It is the responsibility of Customer to maintain accurate billing information with LabLynx. This may include updated credit card information, email address and mailing address. 3. Term The term of this Hosting Agreement shall be one calendar month and shall automatically roll- over on the same terms as provided herein from month -to -month. Standards LabLynx's services will conform to the following: i. Security and Privacy LabLynx will take commercially reasonable steps to prevent unauthorized access to the Data stored on LabLynx's server computers. Further, Customer acknowledges that its Data will be hosted on the intemet. Customer shall use such password protection as it believes advisable to protect against unauthorized access to its Data. Customer agrees and acknowledges that LabLynx will use networking operating center (NOC) software to monitor the activities of end users, including Customer. ii. Server/Network Computer Outages LabLynx will use its best efforts in providing advance notice to Customer of scheduled server computer/network outages. iii. Disclaimers LabLynx provides no equipment, software (other than that provided by LabLynx), or communication connections to Customer. LabLynx makes no representations, warranties or assurances that the Customer's equipment, software (other than that provided by LabLynx), and communication connections will be compatible with the hardware and services provided by LabLynx. 4. Ownership of Content All Data stored by Customer on any server or servers provided by LabLynx shall at all times remain the property of Customer. Customer grants to LabLynx a non-exclusive, worldwide license to the Data only to the extent necessary for LabLynx to host the Data as provided herein. LabLynx's software programs shall at all times remain owned by LabLynx, subject to the limited non-exclusive license granted to Customer herein during the term hereof. 5. Coverage Definitions "Web Site Uptime" means the percentage of a particular month (based on 24 -hour days for the number of days in the subject month) that the content of customer's Web site is available for access by third parties via HTTP and HTTPS, as measured by LabLynx's systems/services. 6. Service Level i. Goal: LabLynx's goal is to achieve 100% Web Site Availability and Uptime for all our customers. ii. Remedy: If the Web Site Uptime of Customer's web site is less than 100%, LabLynx will issue a credit to customer in accordance with the following schedule, with the credit being calculated on the basis of the monthly service charge for the affected Services (per Section 7.iii. and 7.iv. below): iii. Uptime Amounts: Web Site Uptime Credit Percentage 99.0% to 100% 0% 98% to 99.8% 10% 95% to 97.9% 25% 90% to 94.9% 50% 89.9% or below 100% iv. Downtime Amounts: Web Site Downtime in Minutes Credit Percentage less than 42.2 mins 42.3 to 864 mins 865 to 2160 mins 2161 to 4320 mins 0% 10% 25% 50% greater than 4320 mins (72 hours) 100% v. *Assumes a 30 -day month, 43,200 minutes in a month, 1440 minutes in a day 7. Exceptions Customer shall not receive any credits under this Hosting Agreement in connection with any failure or deficiency of Web Site Availability caused by or associated with: i. Circumstances beyond LabLynx's control including, war, strike or other labor disturbance, unavailability/interruption/delay in telecommunications, virus attacks and/or hackers, third party software failure (free scripts, ecommerce software, Merchant Gateways), fire, flood, tornado, earthquakes, acts by any governing body, embargo, boycott, or inability to obtain supplies, raw materials, or power used in or equipment needed for provision of this Service Level Agreement. ii. Failure of access circuits to LabLynx's network, unless the failure is caused solely by LabLynx. iii. Emergency maintenance, scheduled maintenance, and system upgrades. iv. Domain name system (DNS) problems outside of the control of LabLynx. v. Issues with FTP, POP, IMAP, or SMTP customer access. vi. Customer's acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (i.e., PHP, Python, CGI, Perl, HTML, ASP, etc.), any negligence, willful misconduct, or use of the Services in breach of LabLynx's Acceptable Use Policy. vii. Problems elsewhere on the internet that prohibit you from viewing your account. LabLynx is not responsible for browser, DNS, or other caching that might make it appear your site is unavailable even though others can still access your information. This guarantee covers LabLynx controls such as our servers, routers, and switches. 8. Credit Request and Payment Procedures In order to receive a credit, customer must make a request by sending an email message to support@LabLynx.com. Each request in connection with this SLA must include customer's account number (domain name) and the dates and times of the unavailability of customer's Web site. The request must be received by LabLynx within ten (10) business days after Customer's Web Site was not available. If the unavailability is confirmed by LabLynx, credits will be applied within two billing cycles after LabLynx's receipt of Customer's credit request. Notwithstanding anything to the contrary herein, the total amount credited to Customer in a particular month under this SLA shall not exceed the total hosting fee paid by Customer for such month for the affected Services. Credits are exclusive of any applicable taxes charged to customer or collected by LabLynx and are Customer's sole and exclusive remedy with respect to any failure or deficiency in the Web Site Availability of Customer's Web site. 9. Lawful Purpose Customer will only use the services provided by LabLynx for lawful purposes and Customer will not store or provide any Data, software, programs or applications or link to or use any material that violates foreign, federal, state or local laws, rules or regulations, this Hosting Agreement, any Acceptable Use Policies posted by LabLynx, or any other LabLynx policy. 10. Acceptable Use Policies Becoming a Customer of LabLynx constitutes an agreement to abide by this Hosting Agreement and the acceptable use policies set forth herein. All references to LabLynx in this Hosting Agreement include the LabLynx system, network, and its employees, and any third party provider used by LabLynx. All references to Customer include any person or party which uses Customer's account. i. Customer may not use the LabLynx system and services in any way that violates United States federal, state, local, or international law or the rights of others. This prohibits, but is not limited to, any actions of Customer which are threatening, obscene or defamatory, which violate trade secret, copyright, trademark or patent rights, which violates rights of privacy or publicity, which result in the spread of computer viruses or other damaging programs or data files, or which violate any export restrictions (including making non -exportable information or software available to foreign nationals as may be prohibited by law). LabLynx will cooperate fully with law enforcement agencies if criminal activity is suspected. ii. Customer will obey any acceptable use policies for sites, newsgroups, mailing lists, etc. accessed via the LabLynx system or network. Customer will not probe, monitor, breach the security of, or attempt to probe, monitor or breach the security of, or otherwise interfere or attempt to interfere with any host, network, or system without the express authorization of the administrator of the host, network, or system. iii. Customer will not forge, conceal, disguise, or otherwise attempt to alter the identifying characteristics of electronic transmissions originating from its account(s). iv. Customer will not send unsolicited bulk e-mail or spam e-mail. As a guideline, mailing more than 20 messages simultaneously or in close proximity to individual recipients with whom the sender has no pre-existing relationship or who have not otherwise consented to receiving such e- mail will be considered an unacceptable transmission which may result in termination of Customer's account. Any actions which LabLynx, at its sole discretion, believes to be an attempt to circumvent the intent of this prohibition shall be treated as a violation of this provision. Such transmissions and the fallout from such transmissions cause significant damage to LabLynx in terms of resources and staff time as well as reputational damage. Such damages are difficult to calculate in a precise amount. Should Customer distribute such email or messages, Customer agrees that in addition to any remedies provided under this Hosting Agreement, Customer shall be liable to LabLynx for $25,000 as liquidated damages. Should actual damages be ascertainable in excess of $25,000, Customer will be liable for the actual damages. The parties hereto agree that the damages caused by such e-mail communications as those described herein are difficult and impossible to estimate, the sum stipulated hereby is a reasonable pre -estimate of the probable loss to LabLynx, and the parties hereto intend to provide for liquidated damages. Customer shall also be liable for costs and reasonable attorneys' fees actually incurred in collecting any such damages from Customer. Furthermore, should Customer contract for bulk e- mail or message posting services to advertise a service or Web site offered by Customer through LabLynx's system or network, Customer shall be treated under this section as if Customer personally sent such e-mail or posts through LabLynx's system or network. v. Customer is explicitly not permitted to set up Internet hosts or daemons on their computer(s) or with the servers or services provided by LabLynx. Customer is not permitted to share or otherwise let others use its account in any way. vi. If any software or programs are installed by Customer, it shall be Customer's responsibility to ensure itself that it has valid software licenses to do so, and shall hold LabLynx harmless therefrom. vii. If LabLynx finds or suspects, in its sole discretion, that Customer is in violation of any rules set out in this section as an acceptable use policy, Customer's account may be immediately restricted, suspended, terminated or permanently be canceled. If hosting is terminated, LabLynx may, in its sole discretion, reinstate hosting upon adequate showing of Customer's right to use the Content or User Content. viii. LabLynx may, at its option, remove or delete Data, software or any material (without reimbursement) in violation hereof and/or notify authorities. ix. LabLynx reserves the right to modify the rules at any time by publishing such modifications over the service and sending notices to each Customer or by posting changes to LabLynx's site. 11. Taxes Customer is solely liable for any taxes and fees payable for products or services sold by Customer on the Website. 12. Modification of Service LabLynx reserves the right to modify, add, or remove all services and features of the system at any time. Current Customers will receive adequate notice of such changes. In such event, Customer will have the opportunity to terminate the remaining term of this Hosting Agreement. 13. Termination i. Termination by Customer During the term of this Hosting Agreement as may have been extended or rolled -over, Customer may terminate this Hosting Agreement upon the material breach thereof by LabLynx, if such material breach remains uncured for thirty (30) days following written notice to LabLynx. This cure period shall be extended by delay caused by events beyond the control of Lab Lynx including, but not limited to, natural disasters, terrorism, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of LabLynx, or technical faults of LabLynx's service providers or vendors. Customer may terminate this Hosting Agreement upon 90 days' advance written notice to LabLynx. ii. Termination by LabLynx Lab Lynx may immediately terminate the term of this Hosting Agreement for cause at any time without penalty. Causes justifying immediate termination include, but are not limited to: Violation of any foreign, federal, state or local law; non-payment of fees due hereunder; breach of this Hosting Agreement; violation of terms of service found on LabLynx's site; and violation of any other LabLynx' policy. LabLynx may terminate the term of this Hosting Agreement without cause at any time upon 30 days written notice to Customer. In the event of account termination or cancellation, Customer will have five (5) days to access any remaining Data, software or other material stored with LabLynx. 14. Limitation of Liability In addition to the limitation of liability provided in the Agreement and not in lieu thereof, under no circumstances shall LabLynx or anyone else involved in administering, distributing or providing LabLynx's services, be liable for any indirect, incidental, special or consequential damages, including, without limitation, loss of revenues or lost profits, or damages that result from the use of or inability to use LabLynx's services, mistakes, omissions, interruptions, deletion of files or e-mail errors, defects or damage to Customer's Data, software or other materials, defects, viruses, delays in operation or transmission, failure of performance, theft, destruction or unauthorized access to Customer's records, programs or services, even if LabLynx has been advised of the possibility of such losses. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, LabLynx's liability is limited to the least extent permitted by law. In no event shall LabLynx's liability to Customer exceed the aggregate amounts paid by Customer to LabLynx for LabLynx's hosting services during the previous six months. Hello