LabTwin End User License Agreement

BY CLICKING THE “ACCEPT” BUTTON, DOWNLOADING AND/OR INSTALLING THE PRODUCT, OR BY USING OR CONTINUING TO USE THE SERVICE (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, INSTALL AND/OR ACCESS 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 receives first time access to the Service.

“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 Service 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 installed or accessed the Service.

“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.

“Quote” means the LABTWIN order form either in hard or electronic copy or if licenses are obtained through LABTWIN’s 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 Service and the grant of the License.

“Licensee” means You as contractual party to this Agreement and/or any Quote.

“Service” means the LABTWIN voice-powered digital lab assistant, provided as software as a service made available via LABTWIN web platform or application, 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.

“Service Specification” means the LABTWIN’s published list of  capabilities of the Services LABTWIN either provided together with the Service or available on the LABTWIN website.

“Team License” means a license to use the Service 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 (i) the time period set forth in the Quote, if any, or (ii) an indefinite period of time the Service is made available by LABTWIN.

“Third Party Product” means a computer program or any other component included in the Service 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 Service.

“User” means the single (1) physical person designated by the Licensee as the person having the right to use the Service under the License under the terms of this Agreement.

By downloading and installing the Service or accessing the Service 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 Service in accordance with the terms set out in this Agreement.

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 Service may automatically cease operating upon the expiration or termination of this Agreement.  LABTWIN shall have no liability for remotely turning off the Service upon expiration or termination of this Agreement.

5. PROPRIETARY RIGHTS

Licensee is aware of and accepts that the Service 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 Service from LABTWIN to Licensee, except as expressly set out herein.

6. WARRANTY

6.1 LABTWIN provides a limited warranty during the Term that (a) the Service will perform substantially in accordance with the Specifications generally provided by LABTWIN in connection with the Service; and (b) any professional services performed for Licensee by LABTWIN will be performed in a professional and workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices. LABTWIN will (i) provide you with standard support in connection with your use of the Service at no additional charge, and with upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available at a target availability level of 99.5% except for: (a) planned downtime (which LABTWIN shall schedule to the extent practicable during the weekend hours in the area of Central European Time), or (b) any unavailability caused by Force Majeure (as defined in Section10 of this Agreement), and (iii) provide the Service only in accordance with applicable law. LABTWIN will provide support and is available for support matter during 09:00-17:00 (CET) Monday-Friday, excluding German national or public holidays. Notwithstanding the foregoing, LABTWIN has no obligation whatsoever for errors in the Service caused by or related to any third-party products integrated in or connected with the Service. LABTWIN shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Service, and the security of Licensee’s data. LABTWIN shall not access Licensee’s data except to provide the Service and prevent or address service or technical problems, or at your express request in connection with customer support matters.

The warranties as set forth in this Section 6.1 shall only apply if;

(a) the Service is used under normal conditions and in accordance with the Service Specification;

(b) Licensee without undue delay has given LABTWIN notice of any errors, defect, non-conformities or deviations of the Service 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 Service was not caused by inter-working equipment or software not supplied under this Agreement;

(d) any error, defect, non-conformity or deviation of the Service was not caused by Licensee’s use of the Service 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 Service, Maintenance Arrangement and support services 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 Service or otherwise arising out of the use of the Service.

7. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY

7.1 LABTWIN will indemnify and hold Licensee harmless against all claims that an unmodified version of the Service 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 Service 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 Service; or (b) modify the Service such that the Service (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 Service 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 Licensee or User retain all right, title and ownership interest in and to its data. LABTWIN has no right, title or interest in any data and/or information (including, but not limited to, personally identifiable information) contained in or related to Licensee’s or User’s data provided to LABTWIN through their use of the Service.
7.4 Licensee will indemnify and hold LABTWIN harmless against all claims, damages and losses from third parties that result from Licensee’s data or any use of its data in connection with the Service, and Licensee will pay all resulting costs, damages and reasonable attorneys’ fees, provided that LABTWIN notifies Licensee in writing of any such claim, damage or loss in sufficient time to enable Licensee to effectively defend any such claim, damage or loss, Licensee has sole control of the defense and all related settlement negotiations and LABTWIN fully cooperates with Licensee in the defense and all related settlement negotiations.

8. LIABILITY OF LICENSEE

Licensee shall be responsible for its activities related to the use of the Service. Licensee undertakes to indemnify and hold LABTWIN harmless from any liability resulting from any unauthorised use of the Service, copies thereof or access thereto by Licensee or by a third party who has obtained, lawfully or unlawfully, the Service 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 Service shall be, at LABTWIN’s option, to repair, replace or modify the Service. 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 Service (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 Service 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 Service 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, or Indirect, consequential, special or punitive damages, even if LABTWIN has been advised of the possibility of such damages. LABTWIN shall not be liable for the correct choice of products OR SERVICES, for the purpose intended in the individual case and for the correct linkage of such products OR SERVICES 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 OR SERVICES on behalf of Licensee. LABTWIN disclaims any and all liability for faulty and/or false connections of THE SERVICE and for any use that is non-compliant to applicable law in the country of use. Further, to the maximum extent permitted by law, the liability of labTwin for any and all causes with respect to the service, breach of contract, warranty or otherwise, shall in aggregate not exceed the license fee paid during one contractual year.

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, LabTwin’s gross negligent act or omission or wilful misconduct.

(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, internet service provider failures or delays, denial-of-service attacks, 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. CONFIDENTIALITY
11.1 Licensee undertakes to treat as confidential and keep secret all information contained or embodied in the Service and the Service documentation or otherwise received from LABTWIN and LABTWIN undertakes to treat as confidential and keep secret all information Licensee provides using the Service (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 Service 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 stated 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 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 Service, 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 Quote.
12.4 Forthwith upon the termination of this Agreement, Licensee shall, if requested by LABTWIN, cause the Service and any provided materials in connection with the Service to be returned to LABTWIN, destroy or uninstall the Service 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.

13. Transition

Upon written request by Licensee made prior to any expiration or termination of this Agreement, LABTWIN will make Licensee’s data available to Licensee through the Service on a limited basis solely for purposes of Licensee retrieving its data for a period of up to thirty (30) days after such expiry or termination.  After such thirty (30) day period, LABTWIN will have no obligation to maintain or provide any of Licensee’s data and shall thereafter, unless legally prohibited, delete all of Licensee’s data by deletion of Licensee’s account; provided, however, that LABTWIN will not be required to remove copies of Licensee’s data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases LABTWIN will continue to protect Licensee’s data in accordance with this Agreement.  The foregoing deletion obligation will be subject to any retention obligations imposed on LABTWIN by Law. If Licensee wishes its data is to be returned in any other format than “as is” Licensee shall pay for such additional services on a time and materials basis.

Licensee grants to LABTWIN and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, service improvement, correction, modification or other feedback provided by Licensee, its Affiliates or Users relating to the operation or provision of LABTWIN’s products or services. The obligations of LABTWIN set forth in Sections 7.3 and 11 of this Agreement shall not apply in this context and, accordingly, neither LABTWIN nor any of its clients or business partners shall have any obligation or liability to Licensee with respect to any use or disclosure of such information.

Unless otherwise agreed between the parties, during the Term, LABTWIN may disclose Licensee’s name as a customer of LABTWIN and/or subscriber to the Service, and you hereby grant LABTWIN the right to display Licensee’s name, company, and logo in LABTWIN’s marketing materials and on LABTWIN’s public website, in each case in accordance with any branding guidelines you may provide to LABTWIN.

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, construed and enforced in accordance with the substantive laws of Switzerland without regard to its principles of conflicts of laws or the United Nations Convention on the International Sale of Goods. All dispute, controversy or claim arising out of or relating to this Agreement or its validity shall be finally settled according to the ICC Rules of Conciliation and Arbitration without recourse to the ordinary courts of law (except as regards interlocutory relief). The place of arbitration is Zuerich, Switzerland. The arbitral proceedings are to be held in the English or German language.

Licensee acknowledges that its use or disclosure of the Service 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 Service 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 Service. 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 Service, including without limitation, its procurement and use. Licensee must not use the Service 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 Service is prohibited under any law or regulation, Licensee should not proceed with the download, installation or accessing of the Service.