This license agreement (“Agreement”) between the company BRAND GMBH + CO KG (hereinafter “BRAND”) and the customer (hereinafter “Licensee”) regulates the granting of rights to use the standard software EASYCAL™ 5 (hereinafter “Software”) created by BRAND. The parties agree that the Software is protected by copyright law. The Licensee acquires the Software for internal company use for testing and calibrating liquid handling equipment and volumetric instruments made of glass and plastic. Insofar as BRAND’s general terms and conditions of business apply in addition to this Agreement and there is a discrepancy between the provisions of this Agreement and the general terms and conditions of business, the provisions of this Agreement shall take precedence over the general terms and conditions of business with regard to the granting of rights to use the Software.
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY, AND ENSURE THAT YOU HAVE UNDERSTOOD THE PROVISIONS CONTAINED THEREIN BEFORE ACCEPTING THE LICENSE AGREEMENT. THE PERSON ACCEPTING ON BEHALF OF THE LICENSEE REPRESENTS THE LEGAL ENTITY FOR WHICH HE/SHE IS ACTING AND DECLARES THAT HE/SHE IS AUTHORIZED TO ACT ON BEHALF OF AND BIND THE LEGAL ENTITY. IF YOU DO NOT FULLY OR PARTIALLY ACCEPT THE FOLLOWING PROVISIONS OF THE AGREEMENT, ARE NOT AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF THE LEGAL ENTITY OR ARE A USER, DO NOT AGREE TO THE TERMS, DOWNLOAD THE SOFTWARE OR INSTALL AND USE THE SOFTWARE. BY PURCHASING, DOWNLOADING, INSTALLING, USING OR EXPRESSING YOUR AGREEMENT IN SOME OTHER MANNER, YOU ACCEPT THIS LICENSE AGREEMENT AND A LEGALLY VALID AND BINDING AGREEMENT IS THEREBY CONCLUDED BETWEEN BRAND AND THE LICENSEE.
1. Subject matter of the Agreement
1.1 The subject matter of this Agreement is the provision of Software in object code, the granting of rights to use the Software and the maintenance of the Software.
1.2 BRAND supplies the Software to the Licensee by way of download and provides the user documentation in electronic format. The Software is protected by means of a license key, which the Licensee receives via e-mail. The Licensee receives the license key exclusively for using the Software in accordance with this Agreement.
1.3 Installation and configuration services are not subject matter of the Agreement.
1.4 The Software contains the open source software programs listed under Section 11. The open source license agreements for these open source software programs apply independently from the regulations of this License Agreement, taking priority over it.
2. Intended purpose of use
2.1 To fulfill the intended purpose of use of the Software, BRAND offers different license types and models, which are described below.
2.2 BRAND offers the following license types for the Software:
2.2.1 Standalone application / standalone license
The standalone license authorizes the Licensee to execute and use the Software on a single end device in accordance with the conditions of this Agreement. In this case, the Software may be used by an unlimited number of persons on the assigned end device, provided it is ensured that the Software is only used on one operating computer by one device at a time. Virtualization of the assigned device or using other mechanisms to allow use by multiple operating computers is not permitted. Using the Software through a remote connection or automated use by compile servers, build servers or similar server types is not permitted.
2.2.2 Server application
220.127.116.11 Server license
The server license authorizes the Licensee to execute and use the Software on an assigned server in accordance with the conditions of this Agreement. A server license must be used in conjunction with at least one client license, which is purchased separately.
18.104.22.168 Client license
The client license authorizes the Licensee to execute and use the Software on an unlimited number of devices within a server system in accordance with the conditions of this Agreement and the number of purchased client licenses. A client license must be used in conjunction with a server license, which is purchased separately.
2.3 BRAND offers the following license models for the Software:
2.3.1 Demo license
Subject to compliance with the terms and conditions of this Agreement, the demo license authorizes the Licensee to use the Software free of charge over a defined period (hereinafter “Test Period”) for the purposes of evaluating or testing the Software with respect to its suitability for the Licensee. Upon expiration of the Test Period, the license automatically becomes invalid and further use of the Software is prohibited.
2.3.2 Permanent license
A permanent license refers to a specific major version of the Software as well as the updates to this major version provided by BRAND and grants the right to use the Software for an unlimited period of time.
3. Granting a license
3.1 BRAND grants the Licensee the geographically unrestricted, simple (non-exclusive), non-transferable right to use, duplicate, edit and decompile the Software in accordance with this Agreement (see Section 3.2 to Section 3.4) and in accordance with the purchased license type and model. The permitted use comprises the installation of the Software as well as the intended use by the Licensee. The license is granted under the condition precedent that the license fee has been paid in full by the Licensee or a license fee is not required (demo license).
3.2 The right to duplicate is limited to the installation of the Software on a computer system owned directly by the Licensee for the fulfillment of the intended purpose of use, and to duplication that is necessary for loading, displaying, running, transferring and saving the Software as well as the right to produce a backup copy of the Software.
3.3 The right to edit the Software is limited to maintaining or restoring the agreed functionality of the Software.
3.4 The right to decompile the Software can only be exercised when prescribed by law if decompilation is necessary to achieve interoperability with another software program and insofar as BRAND has not provided the Licensee with the information required for decompilation within a reasonable period upon request.
3.5 Further use and exploitation rights to the Software are not granted to the Licensee. In particular, the Licensee is not permitted to sub-license, rent, lend or lease the Software, in whole or in part. If the Licensee wishes to use the software license on another device, he/she must deactivate the software license on the original device before activation on the new device is permitted (moving a license). The Licensee is prohibited from circumventing, modifying, removing or otherwise making unrecognizable any owner markings, copyright notices or other industrial property rights located on the Software, the license key or the user documentation, serial numbers, labels or copy protection features of the Software.
4. Software maintenance
4.1 BRAND further develops the Software to ensure it is of high quality and up to date, adapts it to changing requirements, fixes errors to maintain the quality promised in this Agreement and provides the Licensee with any resulting software patches, bug fixes and updates in accordance with section 4.2. Software maintenance is provided in accordance with the respective state of the art and in such a way that it is oriented towards the interests of all software users. The services are provided only with respect to the last supplied Software version. BRAND can provide patches, bug fixes and updates in accordance with the regulations for the initial provision of the Software. In the event of changes to the state of the art, BRAND reserves the right to change delivery.
4.2 Software maintenance includes the following services (hereinafter “Software Maintenance”):
The installation of software, patches, service packs and updates as well as configurations, parameterizations or software adjustments and backups are not included in Software Maintenance.
5.1. The license fees for a permanent license are due for payment upon transmission of the license key.
5.2. Subject to an express provision to the contrary, all fees are understood as net fees, i.e. plus statutory sales tax. BRAND shall separately disclose the tax rate and the amount of sale tax on the invoice.
6. Copyright law
EASYCAL™ 5 is a software product developed and produced by BRAND, while the open source software mentioned in Section 11 is a third-party software. The Software is subject to international and national copyright law protection. BRAND holds and retains all rights to, ownership in, and all claims relating to the Software, including all copyrights, patents, operating and company secrets, brands, and other intellectual property.
With this License Agreement, the Licensee does not acquire any ownership of the Software; the Licensee only acquires the Software rights listed in Section 3rd.
7.1 The parties agree that software cannot be created without technical limitations. BRAND assumes the warranty only for the software components created by or commissioned by BRAND and declares in this respect that for the warranty period the Software is essentially capable of performing the functions described in the documentation (hereinafter the “Agreed Functions”). In the case of updates, the warranty claims are limited to new features compared to the previous software version. Minor deviations from the agreed functions shall not be grounds for a warranty claim. Program malfunctions caused by an inappropriate installation of the Software not conforming to the operating manual, accidents, misuse or improper application shall be excepted from the warranty. In particular, no warranty shall be granted that the Software provided is compatible with the data processing environment the Licensee is using.
7.2 Insofar as the Software is found to contain a defect, BRAND shall guarantee the opportunity to provide supplementary performance within an appropriate time period. BRAND shall be entitled to a right to select from among types of supplementary performance. Should the reasonable period expire without result or should a reasonable number of attempts at supplementary performance fail, the Licensee may, under the statutory requirements, at his/her discretion withdraw from the Agreement, reduce the price and claim damages or reimbursement of expenses. If the defect does not adversely affect the functionality or only to a negligible degree, BRAND is entitled under exclusion of further warranty rights to repair the defect by supplying a new minor version of the Software or a patch, bug fix or update within the scope of its planning for further development of the Software.
7.3 The period of limitation for warranty claims is 12 months and begins with delivery of the license key. In the case of delivery of patches, bug fixes and updates, the period begins with provision of the patch, bug fix and update.
8. Obligations of the Licensee
8.1 Establishing a functional software environment for the Software shall be the sole responsibility of the Licensee. The same applies to regular backups.
8.2 The Licensee undertakes to install the Software within ten (10) business days after receipt of the license key and to inspect basic program functions for functionality. Defects determined during this inspection or which may be determined, must be disclosed to BRAND by email at email@example.com within an additional ten (10) business days. Claims for defects not determinable during the framework of the regular inspection must be announced to BRAND by email at firstname.lastname@example.org within 10 business days after their discovery. In case of a violation of this inspection and notice obligation, the delivered Software shall be deemed accepted with regards to the defect in question.
8.3 The Licensee shall be responsible for securing the data in accordance with the state of the art and normal data processing operations and shall take reasonable precautions in the event that the Software used by him/her does not work properly in whole or in part, e.g. by performing regular backups, diagnosing faults and/or regularly checking the results. Disadvantages and additional costs due to a violation of these obligations shall be borne by the Licensee.
9.1 The parties undertake to treat all sensitive information of which they become aware during the performance of this contract as confidential and to use it only for contractually agreed purposes. Sensitive information within the meaning of this provision includes information, documents, specifications and data that are indicated as such or are to be regarded as sensitive by their nature. If sensitive information as defined above is requested by a public body from one party, the other party shall be informed immediately and even before the information is released to the public body.
9.2 The aforementioned obligations shall not be affected by any termination of this Agreement. Upon termination of this Agreement, both parties undertake to return or destroy sensitive information at their discretion, provided that this has not been properly used.
10.1 BRAND shall be liable under this Agreement only in accordance with the following provisions:
10.2 BRAND shall be liable for the due diligence customary in the industry. A determination of whether BRAND is at fault in a matter must take into account the fact that software cannot be manufactured without technical limitations.
10.3 BRAND shall not be liable for the loss of data and/or programs to the extent to which such damages result from the failure on the part of the Licensee to complete data backups and thereby ensure that lost data can be restored with a reasonable amount of effort.
10.4 Any further liability of BRAND is excluded on these grounds.
11. Additional applicable regulations
The Software includes open source software programs. The open source license agreements for these open source software programs also apply, taking priority over this License Agreement. You can find the specific open source software programs and valid license agreements in the Software’s version information.
12. Final provisions
12.1 The assignment of claims shall only be permitted following prior written approval from the other respective contractual party. This approval may not be refused unfairly. This shall not affect the regulations of Sec. 354 a HGB (Commercial Code).
12.2 A right of retention may only be asserted due to counterclaims from the respective contractual relationship.
12.3 The contractual parties may only make offsets with claims that have been legally determined or that are uncontested.
12.4 There shall be no ancillary agreements to this Agreement. Amendments and supplements to this Agreement shall require the written form. This written form requirement may only be waived following written agreement. The written form requirement shall be considered satisfied if the notices, changes or amendments are sent by email to and received by the email address used in the transmission of the license keys.
12.5 The law of the Federal Republic of Germany shall apply without restriction, under exclusion of the conflict-of-law rules of international private law, as well as the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.6 The place of fulfillment is Wertheim. The exclusive place of jurisdiction for all legal disputes arising from or in conjunction with this Agreement is Frankfurt am Main. BRAND shall, however, also be entitled to lodge complaints at the Licensee's general place of jurisdiction.
12.7 If individual provisions of this Agreement shall be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. If the invalid provisions is replaced by a valid one, the Parties hereby already agree to enact a provision coming as close as possible to the economic purpose of the invalid one. The same shall be true of any contractual gaps.
BRAND GMBH + CO KG
Tel.: +49 9342 808-0
Fax: +49 9342 808-91505
Version 1.2 – 05/15/2022