LancetCard: Meet your new Web Guy

Lancet will provide website design, consulting and maintenance services to you upon the terms and conditions set forth in this Agreement. You must read and click the “I Accept” icon at the bottom of this Agreement as a condition of receiving Lancet's services. If you do not accept these Terms and Conditions, simply click the “I Do Not Accept” icon at the bottom of the agreement. Requesting services from Lancet after purchasing your Lancet Card constitutes acceptance of these terms and conditions.

Lancet may amend this Agreement at any time by posting the amended terms on our site. All amended terms automatically will be effective thirty (30) days after they are initially posted on our site. You agree periodically to review this Agreement to be aware of any changes, and also agree that your continued use of our Services after such changes are posted will constitute your agreement to such changed terms and conditions. If you have any questions that our website at http://www.lancetcard.com) cannot answer, please contact webguy@lancetsoftware.com.

1. General. This Agreement is intended to: (i) govern any and all Services provided by Lancet to Customer; (ii) supersede any different terms of any related purchase order or similar form, even if signed by the parties after the date hereof; and (iii) supersede all proposals, whether written or oral, and other communications between the parties relating to the subject matter of this Agreement. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in this Agreement to the exclusion of all other terms.

2. Definitions.
2.1 "Confidential Information" means: (i) all Lancet Technology and other information relating to Lancet’s Services and/or proprietary information that Customer may receive in connection with Lancet’s Services, whether disclosed in a physical form (e.g., in writing, in documents, or in physical objects such as prototypes or samples), electronic form (e.g., via electronic transmission or computer readable media such as diskette or CD-ROM), or oral form; and (ii) all other information that is disclosed by one party (the "Discloser") to the other party (the "Recipient") that is conspicuously designated as "Confidential" or in a similar manner giving specific notice of its proprietary nature or, if provided orally, is identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure. Without limitation, Confidential Information may be of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the intellectual property, products, technology, customers, business plans, promotional and marketing activities, finances and other business affairs of such party). Notwithstanding the foregoing, Confidential Information shall not include any information that (i) is or becomes generally known or available to the Recipient without breach of this Agreement; or (ii) can be shown by documentation to have been known to the Recipient at the time of its receipt from the Discloser; or (iii) is rightfully received without restriction as to disclosure or use from a third party who may rightfully make such disclosure; or (iv) is independently developed by the Recipient without any breach of this Agreement, as evidenced by its contemporaneous written records.
2.2 “Customer Materials” means all materials provided to Lancet by Customer in connection with Lancet’s performance of the Services and/or creation of any Works, including artwork, graphic designs and other content.
2.3 “LancetCard™ Account” means Customer’s account from which charges corresponding to the Services performed on Customer’s behalf will be deducted by Lancet as provided in this Agreement.
2.4 “Lancet Technology” means Lancet’s proprietary technology, including software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Lancet or licensed to Lancet from a third party) and also including any derivatives, improvements, enhancements or extensions of Lancet Technology conceived, reduced to practice, or developed by Lancet that are not uniquely applicable to Customer or that have general applicability in the art.
2.5 “LancetCard™” means the Lancet document issued to Customer in consideration of Customer’s non-refundable pre-payment of the fees for Lancet’s Services as provided in this Agreement.
2.6 “Services” means the specific services provided by Lancet as described on the Lancet Reports.
2.7 “Work” means any tangible deliverable provided by Lancet to Customer as described in a Lancet Report.

3. Services; Customer Responsibilities.
3.1 Delivery of Services. Lancet agrees to provide the Services to Customer as specified in this Agreement. In providing the Services, Lancet assumes no obligations or liabilities of Customer except as expressly provided in this Agreement.
3.2 Customer Responsibilities. Customer will (i) designate one (1) point of contact, who will be responsible for responding to Lancet’s questions and authorized to make timely decisions as necessary to assist Lancet in rendering the Services; and (ii) provide Lancet with reasonable access to Customer’s facilities during Lancet’s normal business hours and otherwise as reasonably requested in order to enable Lancet to perform the Services.

4. Fees and payment terms.
4.1 Prepaid Service Plan. Upon Customer’s initial purchase of a LancetCard™ or deposit of additional funds, Lancet will credit Customer’s LancetCard™ Account in an amount equal to Customer’s payment. All payments are nonrefundable. Each time Lancet provides Services to Customer, Lancet will credit Customer’s LancetCard™ Account in an amount equal to the value of the Services provided. Customer may review its current LancetCard™ Account balance at any time by going to the LancetCard™ account-holder section of Lancet’s website at http://www.lancetcard.com.
4.2 Service Charge on Dormant Accounts. Lancet may impose a monthly maintenance fee equal to the greater of $2.50 per month or 3½% of Customer’s then current account balance if Customer fails to request that Lancet perform any Services during any three (3) month period.
4.3 Taxes. All fees charged by Lancet for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on Customer’s purchase of a LancetCard™ and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Lancet’s net income. In the event Services provided under this Agreement become subject to taxation, Lancet will provide notification of same on its Lancet Reports delivered to Customer.

5. Confidential Information; Intellectual Property Ownership; License Grants.
5.1 Confidential Information. Each party acknowledges that it may receive access to certain Confidential Information of the other party during the term of this Agreement. Each party agrees that it will not use any of the other party's Confidential Information in any way for its own account or the account of any third party, except as (i) expressly permitted or required in carrying out this Agreement or (ii) required by law or by any competent government authority. Each party shall protect the confidentiality of the other party’s Confidential Information with the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Nothing in this Agreement shall prohibit either party from disclosing Confidential Information of the other party if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”); provided that the Discloser shall (i) give the Recipient prompt notice of such Required Disclosure prior to disclosure, (ii) cooperate with the Discloser in the event that it elects to contest such disclosure or seek a protective order with respect thereto and (iii) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
5.2 Intellectual Property. Except for the limited license expressly granted to Customer herein, this Agreement does not transfer any Lancet Technology from Lancet to Customer. All right, title and interest in and to Lancet Technology will remain solely with Lancet. Customer agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Lancet Technology.
5.3 General Knowledge; Similar Works. Notwithstanding anything to the contrary in this Agreement, neither party will be prohibited at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing or receiving the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer. Customer understands and agrees that Lancet is in the business of providing computer software consulting, website design, hosting and maintenance services, and that it is likely that Lancet will provide services which may have similar functionality as the Services Works provided to Customer.
5.4 License Grants. (a) By Lancet. Commencing upon delivery of a Work to Customer, Lancet grants to Customer a non-exclusive, non-transferable license to use the Lancet Technology as incorporated into the Work solely for Customer’s own internal business purposes. Customer shall have no right to use the Lancet Technology for any other purpose. (b) By Customer. Customer grants to Lancet a nonexclusive, royalty-free license to use the Customer Materials solely for the purposes of providing the Services and delivering any Works as provided herein.

6. Representations and Warranties.
6.1 Mutual Each party represents and warrants to the other that it has the legal right to enter into this Agreement and perform its obligations hereunder.
6.2 Warranties of Customer. Customer agrees that it will: (i) use the Services and any Works only for lawful purposes and in accordance with this Agreement; (ii) comply at all times with all applicable laws and regulations; (iii) not, without the prior written consent of Lancet (which may be withheld in its sole discretion), resell any Work or the Services to any third parties; (iv) not export, re-export, transfer, or make available, whether directly or indirectly, any Work or regulated item of information to anyone outside the U.S. in connection with this Agreement without complying first with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction customer operates or does business; and (v) fully cooperate at all times with Lancet personnel and any third party personnel acting on behalf of Lancet in performing the Services under this Agreement.
6.3 Lancet Warranty. Lancet warrants that it will perform the Services in a manner consistent with industry standards reasonably applicable to the performance thereof. Except for the express warranties set forth in this section, the Services and all works are provided on an "as is" basis, and Customer's use of the Services and works is at its own risk. Lancet does not make, and hereby disclaims, any and all other Express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Lancet does not warrant that any Work or the Services will be uninterrupted, error-free, or completely secure.
6.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Lancet does not and cannot control the flow of data to or from customer’s computer network and/or the performance of internet services provided or controlled by third parties. Although Lancet will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Lancet disclaims any and all liability resulting from or related to such events.

7. Limitations of Liability.
7.1 Consequential Damages Waiver. Except for a breach of section 5.1 (“Confidential Information”) and excluding its indemnity obligations under this agreement, In no event will Lancet be liable or responsible for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
7.2 Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges that Lancet has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Customer agrees that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

IN NO EVENT SHALL LANCET OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY WORK, THE SERVICES, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. LANCET’S TOTAL LIABILITY, AND THE LIABILITY OF ITS SUPPLIERS, TO CUSTOMER OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT PAID TO LANCET FOR THE ITEM GIVING RISE TO LIABILITY. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

8. Indemnification.
8.1 Mutual Indemnification. Each party will indemnify, defend and hold the other, its officers, directors, shareholders, employees, affiliates, and agents harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against the other or its affiliates alleging (i) the infringement or misappropriation of any intellectual property right relating to the use of a Work or the Services (but excluding any infringement contributorily caused by the other party); (ii) personal injury caused by the negligence or willful misconduct of the other party; and (iii) any claim alleging facts that, if true, would constitute a breach of such party’s warranties under this Agreement.
8.2 Customer Indemnity. Customer shall indemnify, defend and hold harmless Lancet and its affiliates, directors, officers, agents, and employees from any claim or suit, including without limitation any proceeding, investigation or claim to the fullest extent permitted by law arising out of or in connection with an assertion that the Customer Materials or the use thereof infringes any patent, copyright or trademark rights of any third party, or are a misappropriation of any third party’s trade secret.
8.3 Notice. Each party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any Action; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the indemnified party to participate in the defense of any Action; and (iv) receiving full cooperation of the indemnified party in the defense thereof.

9. Termination.
9.1 Termination For Cause. Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of a breach of Section 5.1 (Confidential Information), which must be cured within forty-eight (48) hours after receipt of written notice from Lancet; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
9.2 No Liability for Termination. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
9.3 Effect of Termination. Upon termination of this Agreement for any reason: (a) Lancet may immediately cease providing the Services; and (b) each party immediately will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
9.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 1, 2, 4, 5, 6, 7, 8., and 10.

10. Miscellaneous Provisions.
10.1 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of Lancet), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
10.2 Marketing. Customer agrees that during the term of this Agreement Lancet may publicly refer to Customer, orally and in writing, as a Customer of Lancet.
10.3 Non-Solicitation. During the term of this Agreement and continuing through the first anniversary of the termination of this Agreement, the parties agree that they will not, and will ensure that their affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by the other party or contracted by the other party who is involved in the Services under this Agreement. Notwithstanding the foregoing, a general offer or solicitation for employment directed to the public (e.g., newspaper advertisement) shall not constitute a violation of this Section.
10.4 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers, employees or agents of Customer.
10.5 Governing Law; Dispute Resolution. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Minnesota (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules (and if Customer is a non-U.S. entity, the International Arbitration Rules) of the American Arbitration Association (“AAA”). There will be three (3) arbitrators (the “Arbitration Tribunal”), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter. The language of the arbitration shall be English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal and the AAA. This Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Minneapolis, Minnesota. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Customer’s failure to pay for Services in accordance with this Agreement may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
10.6 Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
10.7 Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Lancet, and any attempted assignment or delegation without such consent will be void. Lancet may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Lancet may delegate the performance of certain Services to third parties, including Lancet’s wholly owned subsidiaries, provided Lancet controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.8 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the Recipient as listed on the Purchase Order or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
10.9 Relationship of Parties. Lancet and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Lancet and Customer. Neither Lancet nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
10.10 Entire Agreement; Counterparts; Originals. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Lancet without need of further notice of objection, and shall be of no effect or in any way binding upon Lancet. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
10.11 Privacy Policy. Lancet uses reasonable precautions to keep all personal information disclosed to it secure, and to disclose such information only to third parties it believes to be responsible. However, Lancet is not responsible for any breach of security or for any actions of any third parties that receive the information. Lancet intends to cooperate with all law enforcement inquiries.
10.12 Applicable Law. The laws applicable to these terms and conditions shall be the laws of the State of Minnesota, USA, without regard to its conflict of laws. If any part of the terms and conditions is considered invalid or unenforceable, such provision shall be struck and all remaining provisions shall be enforced.
10.13 Jurisdiction; Venue. Customer consents to jurisdiction of the courts of the State of Minnesota and/or the Federal District Courts, Fourth Division, State of Minnesota, for the purpose of resolving all issues of law, equity, or fact arising out of or in connection with this Agreement, and that the venue for the purpose of all such suits shall be in Hennepin County, State of Minnesota, only.
10.14 Acknowledgment. By registering and using a LancetCard™, Customer states that it has read and understands these Terms and Conditions. If you do not agree, you will not be permitted to receive any Lancet Services. Please contact Lancet Software Development, Inc. and request a refund of any balance credited to your LancetCard™.