End User License Agreement
Last Updated ·December 4, 2018
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.
- 1. DEFINITIONS
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.
2. ACCEPTANCE OF LICENSE TERMS
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.
3. LICENSE TERMS
3.1 LABTWIN hereby grants to Licensee a non-exclusive, non-transferable right to Licensee to use the Product in object code form only during the Term for: (a) its internal business purposes only or (b) if an individual is obtaining this license, for the individual’s private use, in each case, each license is subject to the terms and conditions hereof, any restrictions or parameters in the LABTWIN Quote and subject further to the functionality listed in the LABTWIN Quote, if any. LABTWIN provides the Product exclusively via internet. The Product may only be used by the registered User and not by other employees, agents or consultants of Licensee. Licensee may install and use the Product on a maximum of one (1) single device and may not install the Product on a server which may be accessed by multiple users through a network, unless the LABTWIN Quote specifically provides that Licensee may do so. Notwithstanding installation of the Product on more than one (1) device, and for the avoidance of doubt, the Product is restricted to use only by the User, unless otherwise specifically provided for in the LABTWIN Quote.
3.2 The License includes a right to use updates, upgrades (“Enhancements”) to the Product that LABTWIN may develop and deliver during the Term, provided that, Licensee is current on maintenance and support that expressly entitles the Licensee to receive such Enhancements to the Product from LABTWIN (“Maintenance Arrangement”). After receiving an Enhancement to the Product, the Licensee may no longer use the software that formed the basis for its upgrade eligibility.
3.3 The License granted herein does not include the right to disassemble, decompile, reverse engineer (except to the extent such restriction is prohibited by applicable local law in order to obtain interoperability), modify, copy, enhance, translate or create any works derivative of the Product or to permit any other person to have access to the Product by means of timesharing, hosting, application service provider, service bureau, remote computing services, networking, batch processing or any other means, nor permit the whole or any part of the Product to be combined with or become incorporated in any other programs other than as set out in the Product Specification. Licensee may not pledge, assign, sublicense, lease, time share or otherwise transfer, in whole or in part, the Product, without the prior written consent of LABTWIN.
3.4 Licensee may use the Product only for lawful, authorized and permitted purposes. Licensee shall not use the Product in any way that (i) infringes the rights of LABTWIN or any third party (including privacy and publicity rights or intellectual property rights), or (ii) uploads to, or transmit from, the Product any data, data files, or link that contains or redirects to a virus, trojan horse, worm or other harmful component; or (iii) would be in breach of applicable laws and regulations; or (iv) authorises or encourages any third party to do any of the foregoing.
4. DURATION OF THE LICENSE
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.
5. PROPRIETARY RIGHTS
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.
6.1 To the extent the License is not a Team License or a test license, LABTWIN warrants during the Term that the Product will function generally in accordance with the Product Specification. Notwithstanding the foregoing, LABTWIN has no obligation whatsoever for errors in the Product caused by or related to any Third Party Products.
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.
6.2 The express warranties set forth in Section 6.1 above are the only warranties made to Licensee and are provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the warranty contained in Section 6.1 above, and to the maximum extent permitted by applicable law, LABTWIN provides the Product, Maintenance Arrangement and support services (if any) as is and with all faults, and hereby disclaims all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, and the provision of or failure to provide support or other services, information, software, and related content through the Product or otherwise arising out of the use of the Product.
7. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
7.1 LABTWIN will indemnify and hold Licensee harmless against all claims that an unmodified version of the Product infringes a patent or copyright, and LABTWIN will pay all resulting costs, damages and reasonable attorneys’ fees finally awarded, provided that Licensee notifies LABTWIN in writing of any such claim in sufficient time to enable LABTWIN to effectively defend any such claim, LABTWIN has sole control of the defense and all related settlement negotiations and Licensee fully cooperates with LABTWIN in the defense and all related settlement negotiations. In the event that it is reasonably determined by a court of competent jurisdiction that use of the Product by Licensee is restricted or prohibited by reason of such infringement, LABTWIN, at its sole option, may: (a) obtain for Licensee the right to continue using the Product; or (b) modify the Product such that the Product (as modified) becomes non-infringing; or (c) provide a refund to Licensee based upon amortization of the License Fee on a straight-line basis over five (5) years from the Effective Date.
7.2 The provisions of Section 7.1 above shall not apply to any claim arising out of designs, specifications, modifications or enhancements originating with, or requested by Licensee, nor shall it apply to the combination of the Product with other equipment or software not supplied by LABTWIN if such infringement or misappropriation would not have occurred but for such combination. THIS SECTION STATES LABTWIN’S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
7.3 Under no circumstances shall LABTWIN obtain any intellectual property rights whatsoever in the content of the data provided by Licensee using the Product.
8. LIABILITY OF LICENSEE
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.
9. LIABILITY OF LABTWIN
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.
10. FORCE MAJEURE
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.
- 11.1 Licensee undertakes to treat as confidential and keep secret all information contained or embodied in the Product and the Product documentation or otherwise received from LABTWIN and LABTWIN undertakes to treat as confidential and keep secret all information Licensee provides using the Product (both alternatives hereinafter collectively referred to as the “Information”) provided that this Section 11 shall not extend to any information which was rightfully in the possession of the receiving party without confidentiality obligations prior to the commencement of the negotiations leading to this Agreement or was developed independently by the receiving party without reference to, or reliance on, the Information of the disclosing party or which is already public knowledge or if it does become so at a future date, without fault of the receiving party (otherwise than as a result of a breach of this Section 11).
- 11.2 Receiving party shall not without the prior written consent of disclosing party disclose any part of the Information to any person except to disclosing party’s employees, affiliates, affiliates’ employees and any third party consultants or subcontractors on a strict need to know basis, and in case of Licensee except to (i) Licensee’s auditors and any other persons or bodies having a right, duty or obligation to know the business of Licensee and then only in pursuance of such right, duty or obligation, and (ii) any person who is from time to time appointed by Licensee to maintain any device on which the Product is being used (in accordance with the terms of the License) and then only to the extent necessary to enable such person properly to maintain such device.
- 11.3 Receiving party undertakes to ensure that the persons and bodies mentioned in Section 11.2 are made aware prior to the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to disclosing party. Receiving party shall be solely responsible and liable for such third party’s compliance with this Section 11.
12. TERMINATION AND EFFECTS OF TERMINATION
- 12.1 LABTWIN may terminate this Agreement with immediate effect if Licensee commits any material breach of the terms and conditions of this Agreement.
- 12.2 Unless otherwise agreed in a LABTWIN Quote, each party may terminate this Agreement by giving 90 days prior notice.
- 12.3 In addition to the foregoing, LABTWIN may also terminate the Agreement, wholly or partly, with immediate effect without cause, provided however, that the Licensee in such case shall receive a pro-rata refund of the price paid for the Product, based upon amortization of the License Fee on a straight-line basis over two (2) years from the Effective Date, if applicable or unless otherwise agreed in a LABTWIN Quote.
- 12.4 Forthwith upon the termination of this Agreement, Licensee shall, if requested by LABTWIN, cause the Product and any provided materials in connection with the Product to be returned to LABTWIN, destroy or uninstall the Product and shall certify in writing to LABTWIN that the same has been done.
- 12.5 Any termination of the License or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
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.
15. AGREEMENT AND SEVERABILITY
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.
16. GOVERNING LAW
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.
17. IRREPERABLE HARM AND INJUNCTIVE RELIEF
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.
18. EXPORT CONTROLS
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.
19. U.S. GOVERNMENT END-USERS
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.