LabTwin GENERAL LICENSE CONDITIONS
BY CLICKING THE “ACCEPT” BUTTON, DOWNLOADING AND/OR INSTALLING THE PRODUCT, OR BY USING OR CONTINUING TO USE THE PRODUCT (AS THE CASE MAY BE) YOU, THE LICENSEE, AGREE TO BE SUBJECT TO AND BOUND BY THE TERMS OF THIS AGREEMENT BETWEEN YOU AND LABTWIN GMBH (LABTWIN). IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT USE, DOWNLOAD AND/OR INSTALL THE PRODUCT AND IMMEDIATELY RETURN ALL MATERIALS AND FILES TO LABTWIN FOR A FULL REFUND OF THE LICENSE FEE YOU PAID, IF ANY.
Whenever used in this Agreement the following terms shall, to the extent the context does not require otherwise, have the following meaning;
“Activations” means each time Licensee creates a copy of the Product.
“Agreement” means these LabTwin General License Conditions, applicable between LABTWIN and Licensee.
“Effective Date” means the earlier of (i) the date when LABTWIN has made available the Product to Licensee, (ii) the date when LABTWIN and Licensee have concluded a contract subsequent to a Quote in consideration of the License Fee or (iii) the date when Licensee has downloaded or installed the Product.
“LABTWIN” means LabTwin GmbH, a company duly incorporated and organised under the laws of Germany and having its principal office at Prenzlauer Allee 242, 10405 Berlin, Germany, and/or its subsidiaries and affiliates.
“LABTWIN Quote” means the LABTWIN order form either in hard or electronic copy or if licenses are obtained through LABTWIN’ website, the LABTWIN order confirmation.
“License” means the license granted by LABTWIN pursuant to Section 3.
“License Fee” means the compensation to be paid by Licensee in consideration of the delivery of the Product and the grant of the License.
“Licensee” means You as contractual party to this Agreement and/or any LABTWIN Quote.
“Maintenance Arrangement” means as set out in Section 3.2.
“Product” means the software, i.e. the computer program in machine-readable object code form (including documentation and any accessories), provided via download or copy on a hard disc drive or provided as software as a service made available via LABTWIN web platform, as the case may be, including any patches, bug fixes, upgrades, enhancements and new versions of the software which are provided as a result of a Maintenance Arrangement, if applicable.
“Product Specification” means the LABTWIN’s published list of the Product’s capabilities LABTWIN either supplied together with the Product or available on the LABTWIN website.
“Team License” means a license to use the Product pursuant to Section 3.1(b) of this Agreement and subject to the number of Activations, Users and/or other restrictions pursuant to LABTWIN’ Quote during the Term.
“Term” means the period of time beginning on the Effective Date through the earlier of (i) the time period set forth in the LABTWIN Quote, if any, or (ii) an indefinite period of time the Product is made available by LABTWIN.
“Third Party Product” means a computer program or any other component included in the Product which LABTWIN has not developed, but to which LABTWIN has been granted a right from a third party to use as part of, or together with, the Product.
“User” means the single (1) physical person designated by the Licensee as the person having the right to use the Product under the License under the terms of this Agreement.
By downloading and installing the Product or accessing the Product via web platform (as the case may be), the Licensee agrees to and accepts the terms of the License (as set forth in this Agreement) under which Licensee benefits from a non-exclusive right to use the Product in accordance with the terms set out in this Agreement.
The License shall commence on the Effective Date and shall, subject to Licensee’s continued compliance with the terms of this Agreement, continue during the Term, unless earlier terminated as provided in this Agreement. The License shall terminate immediately upon the earlier of (i) the expiration of the Term or (ii) termination of this Agreement, pursuant to the terms of this Agreement. Licensee acknowledges that the Product may automatically cease operating upon the expiration or termination of this Agreement. LABTWIN shall have no liability for remotely turning off the Product upon expiration or termination of this Agreement.
Licensee is aware of and accepts that the Product is and shall remain the property of LABTWIN, or its licensor(s), and that nothing herein shall be construed as transferring any rights whatsoever in the Product from LABTWIN to Licensee, except as expressly set out herein.
This warranty shall only apply if;
(a) the Product is used under normal conditions and in accordance with the Product Specification;
(b) Licensee without undue delay has given LABTWIN notice of any errors, defect, non-conformities or deviations of the Product and has provided a warranty fault report to LABTWIN presenting a specification of the error, promptly after the error has been discovered by Licensee;
(c) any error, defect, non-conformity or deviation of the Product was not caused by inter-working equipment or software not supplied under this Agreement;
(d) any error, defect, non-conformity or deviation of the Product was not caused by Licensee’s use of the Product together with equipment or software, other than prescribed by LABTWIN; and
(e) Licensee has given LABTWIN every opportunity to remedy such error, defect, non-conformity and deviation.
Licensee shall be responsible for its activities related to the use of the Product. Licensee undertakes to indemnify and hold LABTWIN harmless from any liability resulting from any unauthorised use of the Product, copies thereof or access thereto by Licensee or by a third party who has obtained, lawfully or unlawfully, the Product or copies thereof from Licensee, including, but not limited to, claims from third parties, damages, lost profits and additional license fees for LABTWIN or other costs, including reasonable attorneys’ fees.
The following shall apply with regard to LABTWIN’s liability under this Agreement;
(a) To the maximum extent permitted by law, LABTWIN’s entire liability and Licensee’s exclusive remedy for any breach of the warranties contained in Section 6 or any other liability relating to the Product shall be, at LABTWIN’s option, to repair, replace or modify the Product. In the event LABTWIN considers, at its sole discretion, that none of the above alternatives is possible at a reasonable cost to LABTWIN, then Licensee shall be obliged to stop using the Product (whereupon the Agreement shall be considered as terminated with immediate effect) and the Licensee will in such case as full and final compensation obtain a pro-rata refund of the price paid for the Product license, based upon amortization of the License Fee on a straight-line basis over five (5) years from the Effective Date. The foregoing shall be LABTWIN’s sole obligation and Licensee’s sole remedy for a breach of warranty or any other liability relating to the Product by LABTWIN.
(b) To the maximum extent permitted by law, LABTWIN shall not be liable for any loss of orders, loss of profits (irrespective of whether loss of profits constitute direct or consequential damages), loss of data, loss of business, even if LABTWIN has been advised of the possibility of such damages. LABTWIN shall not be liable for the correct choice of products, for the purpose intended in the individual case and for the correct linkage of such products to one another or to items of the Licensee. This shall be the sole responsibility of the Licensee or of such person who links and installs the products on behalf of Licensee. LABTWIN disclaims any and all liability for faulty and/or false connections of products and for any use that is non-compliant to applicable law in the country of use.
LABTWIN shall be liable in accordance with the legal provisions in the event of breach of material contractual duties; i.e., said duties that entail mutuality of obligation with respect to Licensee’s duties, that are of fundamental importance for protection of Licensee or whose fulfillment is prerequisite to enabling this Agreement to be duly performed and, for this reason, the Licensee rightly expects said LABTWIN duties to be performed. With regard to breach of any other duties, LABTWIN shall be liable in accordance with the legal provisions if said other duties are breached by its legal representatives or managerial employees. If these other duties are breached by simple vicarious agents, LABTWIN shall be liable only in the event of gross negligence and willful intent. The same shall apply to claims for damages for tort and to claims for damages on account of actions carried out by LABTWIN’s agents employed in performing an obligation hereunder. LABTWIN shall not be liable for losses not typically associated with this type of agreement and that are thus scarcely foreseeable. With regard to claims under the German Product Liability Law, said Law shall apply without restriction.
LABTWIN shall be liable in accordance with the statutory provisions in the event of culpable physical injury and hazards to life and health or loss of life.
(c) The parties acknowledge that the limitations and exclusions of liability are reasonable in the context of this Agreement and, in particular, recognise that the License Fee has been agreed on the basis of the limitations and exclusions of liability set out herein.
LABTWIN shall not be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures and/or power outages. The performance of LABTWIN’s obligations shall be suspended during the period that the said circumstances persist and LABTWIN shall be granted an extension of time for performance equal to the period of the delay. Nothing in the foregoing shall be deemed to relieve Licensee of its obligation to pay the License Fee owed under this Agreement, if any.
Licensee shall not be entitled to assign, sub-license or otherwise transfer its rights and obligations under this Agreement, whether in whole or in part without the prior written consent of LABTWIN. LABTWIN is entitled to assign this Agreement and all of its rights and obligations hereunder. This Agreement will be binding upon and will inure to the benefit of the parties and permitted successors and assigns.
The failure of either party hereto to insist upon the strict adherence to any term of this Agreement on any occasion shall not be considered as a waiver of any right hereunder nor shall it deprive that party of the right to insist upon the strict adherence to that term or any other term of this Agreement at some other time.
This Agreement supersedes any and all other agreements, oral or written, between the parties hereto with respect to the subject matter hereof. In the event that any term hereof should be or become invalid, this shall not affect the validity of the remaining terms hereof. Any invalid term shall be substituted by a corresponding, legally valid provision.
This Agreement shall be governed by, and construed and enforced in accordance with the substantive laws of the Federal Republic of Germany without regard to its principles of conflicts of laws or the United Nations Convention on the International Sale of Goods. If Licensee is a legal entity, both parties hereby consent to the exclusive jurisdiction of the courts of Goettingen, Germany.
Licensee acknowledges that its use or disclosure of the Product or Information or the threat to make such use or disclosure in a manner inconsistent with this Agreement, will cause LABTWIN extensive and irreparable harm, and hereby consents that LABTWIN shall have the right, at any court of competent jurisdiction in any location where the Product is being used by Licensee, to injunctive relief to prevent the unauthorised use or disclosure.
This License is subject to all applicable laws and regulations and of other controlling jurisdictions regarding the export, re-export, transfer, import, or use of the Product. This License is also subject to all applicable laws and regulations regarding sanctions/embargoes imposed against certain persons, entities, activities and countries. Licensee must comply with all applicable export, import, and sanction/embargo laws and regulations of any jurisdiction relating to the Product, including without limitation, its procurement and use. Licensee must not use the Product or any related information and technology offered by LABTWIN in or in connection with nuclear technology or weapons of mass destruction (nuclear, biological or chemical) and carriers thereof nor supply military consignees. If Licensee has reason to believe that its download (including any demo version) or purchase of the Product is prohibited under any law or regulation, Licensee should not proceed with the download, installation or accessing of the Product.
The Product is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202, as applicable, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Licensee may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Product and documentation with only those rights set forth in the Agreement. Use of either the Product or documentation or both constitutes agreement by the Government that the Product and documentation are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein.