LICENSING TERMS FOR BRAINVISION RECORDER


1. SCOPE OF VALIDITY AND SUBJECT OF THE AGREEMENT

The following terms apply to the provision and use of the computer program "BrainVision Recorder" 
developed by Brain Products GmbH (referred to hereinafter as "Brain Products"), the user 
documentation (user manual) and any other associated written material as well as all copies, 
updates, upgrades and any other additions provided by Brain Products (all of which, together, are 
referred to hereinafter as "software").

Deviating, contrasting or additional terms of the user are not applicable, even if they are known, 
unless Brain Products has expressly agreed in writing to their applicability.

The software and any copies of the software made by the user are the intellectual property of Brain 
Products and its suppliers. The software is protected by law, in particular by German copyright 
legislation. The software may only be used in accordance with these licensing terms.

The software allows to record and analyze physiological signals by using a personal computer. The 
software is intended to be used only by scientific or medical professionals as well as trained 
personnel, and exclusively for research purposes. The software is not suitable for clinical use and 
therefore may not be used for medical purposes such as diagnosis or treatment.

Brain Products does not guarantee that the functions of the software will work in conjunction with 
other software products. The requirements to be met by the operating system and hardware are set 
out in the product description and user documentation.

The user documentation offers a binding description of the product. The user is not entitled to use 
the software other than as described in the user documentation. German- or English-language user 
documentation (depending on the choice of the user) is supplied in a printed or printable form, 
unless otherwise agreed in writing.

Accompanying services offered by Brain Products, such as installation, introduction to the product, 
training, support etc., are not covered by this contract unless this is expressly agreed in writing.


2. LICENSING

Brain Products grants the user the non-exclusive right to use the software as intended for an 
unlimited period in return for the agreed once-only payment.


DONGLE

Brain Products uses a USB dongle for verifying that a user has a license. The dongle stores the license 
information and thus controls access to the software. The software can only be used in conjunction 
with a dongle. The dongle must be inserted in one of the computer's USB ports.

If the dongle supplied fails to work, the user can return it to Brain Products and request a 
replacement. During the warranty period for defects, the replacement is provided free of charge. 
After the warranty period for defects has expired, a lump sum plus shipping costs must be paid.

In the event of theft or loss of the dongle, the user has no right to receive a replacement. Brain 
Products reserves the right to lock the licenses stored on the dongle if the user reports its loss.


REPRODUCTION

The user must not reproduce (make copies of) the program unless this is necessary in order to use it. 
Necessary copying includes, in particular, the installation of the program from the original data 
carrier or after a single download of the software from the homepage of Brain Products on the mass 
storage medium of the hardware used and the loading of the software into main memory.

In addition, the user can make one copy for backup purposes. This copy shall be marked as backup 
copy. If the user can prove that the original version from the original data carrier can no longer be 
found or is unusable, the backup copy replaces the original. In this case the user is alternatively 
entitled to download the software once again from the homepage of Brain Products.

Copies must not be made of the user manual or significant parts of it. If the manual is only available 
electronically on a data carrier, it can be printed on paper.


DECOMPILATION AND CHANGES TO THE PROGRAM

The decompilation of the program code provided into other forms of code and any other kind of 
reverse engineering of the software are not permissible. The interface information required for 
establishing interoperability with an independently created computer program is provided to the 
user by Brain Products on request free of charge or in return for a small contribution to cover costs.

It is not permissible to remove or circumvent the program's dongle routine. The dongle protection 
can only be removed or circumvented in order to make the program work if the dongle protection 
impairs the program or prevents it from being used, and if Brain Products fails to eliminate this 
problem within a reasonable period of time despite the fact that the user has notified Brain Products 
in writing, providing as precise a description of the problem as possible. The user must provide Brain 
Products with written notification and a written description of this change to the program. If the 
dongle protection is impairing or preventing the problem-free use of the software, the burden of 
proof lies with the user.

Any other changes to the program, in particular for the purpose of either eliminating faults that are 
not dependent on the dongle or adding functionality, are not permissible unless they are made solely 
for the user's own use and will not be exploited commercially in any way. Such changes to the 
program may not be provided to commercial third parties who may be in competition with Brain 
Products unless Brain Products does not want to make the desired changes to the program in return 
for a reasonable payment. Brain Products must be allowed a reasonable period within which to 
decide to accept the job.

Copyright marks, serial numbers and other such marks or information that identify the program must 
on no account be removed or altered. The same applies to the suppression of the display of such 
marks or information on the screen.


ACCESS CONTROL

The user must ensure that everyone who uses the software as intended complies with the terms of 
use.

The user is obliged to take appropriate precautions to prevent unauthorized third parties from 
accessing the program and documentation.


RESELLING AND SUBRENTAL

The user may dispose of or give away the software, including the user manual and other 
accompanying material, to a third party on a permanent basis provided the third party accepts the 
terms of this agreement by making a written declaration to Brain Products. If the user passes the 
software on to a third party, the user must give the new user the copy that has been made of the 
software, including any backup copies, or alternatively destroy them. Having passed the program on 
in this way, the original user has no further right to use the program and will completely cease his 
use. At the request of Brain Products, the user will confirm in writing that the above measures have 
been fully implemented. The user is obliged to provide Brain Products with the name and full address 
of the new user in writing.

The user can pass on the software, including the user manual and accompanying material, to a third 
party for a limited period, provided it is not rented for commercial purposes or leased to the third 
party, provided the third party agrees to the terms of this agreement and makes a declaration to this 
effect, and provided the user passing the software on also passes on all copies of the program, 
including any backup copies, or destroys any copies not passed on. During the period for which the 
software is provided to the third party, the original user has no right to use the program. Rental for 
commercial purposes and leasing are not permissible.

The user must not pass the software on to a third party when there are reasons for suspecting that 
the third party will violate the terms of this agreement, particularly by making illegal copies of it.


3. SUPPORT, UPGRADES AND UPDATES

If Brain Products removes program errors by means of bug fixes or updates, Brain Products will make 
the relevant part of the program or update available to the user free of charge.

Support will be provided only for the currently valid version of the software that has been improved 
by the bug fixes and updates provided.

If the software is further developed in the form of an upgrade for which a charge is made, support 
will be provided for the previous version for the period of a year after the release of the new version.


4. PROTECTED RIGHTS OF THIRD PARTIES

Brain Products exempts the user from any claims that third parties might make against the user as a 
result of the violation of protected rights by the software supplied by Brain Products. The 
prerequisite for this is that the user must notify Brain Products in writing immediately when a third 
party makes a claim, and that any legal disputes, including any settlements out of court, must be left 
to Brain Products or only conducted in agreement with Brain Products.

If the user is responsible for violating the protected rights of third parties, it is not possible for the 
user to make claims against Brain Products.


5. LIABILITY FOR DEFECTS

If Brain Products is obliged to remedy defects by means of updates or workarounds, the remedy of 
defects shall be carried out in accordance with the following provisions:

Technical data, specifications and performance data in public statements, in particular in advertising 
material, do not constitute quality specifications. The functionality of the software is based on the 
description in the user documentation.

Dongle protection is one of the agreed features of the product and does not represent a defect in the 
software.

The warranty does not apply to defects caused by the software being used in a hardware and 
software environment that does not meet the requirements characterized in the user documentation 
or to any changes or modifications made to the software by the user without the prior written 
consent of Brain Products or by operation of law. This also applies if the defect is due to improper 
operation by the user.

Defects in the software, including the manuals and any other documents, will be eliminated by Brain 
Products within the statutory warranty period for defects of two years after delivery following 
notification of such defects by the user. The user will have the choice of either free elimination of the 
defect (improvement) or delivery of a defect-free copy of the software (replacement delivery). In the 
case of a replacement delivery, the user is obliged to return the defective item.
If the defect cannot be eliminated within a reasonable period, or if the improvement of the product 
or replacement delivery is regarded as unsuccessful for other reasons, the user can choose to 
demand a reduction in the price or withdraw from the agreement and make a claim for losses or for 
the reimbursement of costs incurred in vain. Withdrawal from the contract is excluded if the defect is 
negligible. Claims for losses and the reimbursement of costs incurred in vain are covered in section 6 
of these licensing terms.

It can only be assumed that an improvement or replacement delivery has been unsuccessful in the 
following cases: the supplier has been given sufficient opportunity to improve the product or provide 
a replacement and failed to achieve the desired success; an improvement or replacement delivery is 
impossible; the supplier refuses to improve the product or provide a replacement, or delays doing so 
for an unreasonable period of time; there are reasons for doubting there is any prospect of success; 
or there are other reasons for this being unreasonable.

The user - unless it is a consumer - is obliged to examine the software supplied for obvious defects 
that an average user would be bound to notice. Brain Products must be notified in writing of any 
obvious defects, in particular missing data carriers, manuals, or significant, easily visible damage to a 
data carrier, within two weeks of delivery. Defects that only become evident subsequently must be 
reported to Brain Products in writing within two weeks of their discovery by the user. The notice of 
defect must be sent before this period expires. If the user fails to fulfill the obligation to examine the 
software or notify Brain Products of a defect, the software is considered to be approved despite the 
defect.

The right of the user to have a defect eliminated is excluded if the defect is not reproducible or 
cannot be demonstrated using outputs from the screen or handwritten copies of those outputs.

The liability for defects does not extend to programs or program components that have been altered 
or added to by the user, unless the user can show that these changes or additions have not caused 
the defect.


6. GENERAL LIABILITY

Claims for losses or for the reimbursement of costs incurred in vain are made – whatever the legal 
basis – in accordance with this clause.

Brain Products is not liable for itself, for its representatives or subcontractors, unless the life, body or 
health of another person were injured intentionally or negligently; essential contractual obligations 
(cardinal obligations) were violated intentionally or negligently). Essential contractual obligations are 
those whose fulfilment is necessary to achieve the objective of these licensing terms and which 
protect material legal positions arising from this of these licensing terms.

In the event of a breach of essential contractual obligations, Brain Products and the user shall only be 
liable for the foreseeable damage typical of the contract if this was caused by slight negligence, 
unless it is a matter of injury to life, body or health, or if they have intentionally or grossly negligently 
breached non-material contractual obligations. In addition, the Brain Products and the user shall be 
liable to the extent that mandatory statutory liability regulations exist.


7. BREACHES OF CONTRACT

Brain Products is entitled to withdraw from these licensing terms if the user, his legal representatives 
or subcontractors violate his rights of use. In this case, the user must return the entire software to 
Brain products. If a backup copy has been made or copies have been made within the scope of copy 
licenses, these must be destroyed immediately. Contract software installed on the user's hardware 
must be deleted immediately. The destruction and deletion must be proven in writing to Brain 
Products upon first request and must be affirmed in lieu of oath upon   written request.


8. FINAL CLAUSE

No tacit, oral or written ancillary agreements were made. Additional agreements, amendments and 
supplements to these licensing terms and to the respective individual agreements or bookings shall 
only be effective if they are agreed in writing at or after conclusion of these licensing terms and are 
expressly referred to as additional agreements, amendments or supplements. This shall also apply to 
an amendment to this written form clause. Electronic documents in text form do not fulfil the written 
form requirement. The above written form requirement does not apply to an individual contractual 
agreement between the parties.

If Brain Products uses additional other General Terms and Conditions that conflict with these 
licensing terms, the provisions of this licensing terms shall prevail over the General Terms and 
Conditions.  

The user can only make a counterclaim if it is uncontested or recognized as having legal force.

The user can only exercise a right of retention if the user's counterclaim is based on the same 
contractual relationship.

If the user is a merchant, public law entity or separate estate under public law, or if the user has no 
general legal venue in the country, the exclusive legal venue for all disputes arising from the contract 
is Munich, Germany. Brain Products is also entitled to take legal action at any other legal venue.

The law of the Federal Republic of Germany is applicable, to the exclusion of the UN Convention on 
Contracts for the International Sale of Goods (CISG).

The English-language version of these licensing terms is the authoritative version.

Should current or future provisions of these licensing terms be wholly or partially invalid or lose their 
legal validity or enforceability later, the validity of the remaining provisions of these licensing terms 
shall not be affected. The Brain Products and the user shall try to find an effective provision in place 
of the invalid provision that comes closest to the economic meaning of the invalid provision.

If, during the term of these licensing terms, the economic, legal and competitive conditions 
underlying these licensing terms, on which the provisions of these licensing terms are based, change 
significantly and affect a change in the contractual relationship between Brain Products and the user, 
Brain Products and the user will discuss the consequences of such a change with each other and 
adapt the contract to the changed conditions. The party asserting the reasons for the change must 
explain them to the other party.


July 31st 2019, Brain Products GmbH