Software License Agreement and Terms of Use
1. Introduction and definitions
1.1. Before using the Software, please carefully read these Terms and all other documents referenced herein. By submitting the order form on the Website or by starting to use the Software, you enter into a Contract with Us. If you do not agree to these Terms, you may not use the Software.
1.2. The capitalized pronouns "We", "Us" and "Our" refer to Václav Jedlička, a natural person doing business under the laws of the Czech Republic, with its registered office at Blattného 2336/1, 158 00, Prague 5 – Stodůlky, Czech Republic, ID No.: 625 93 382.
1.3. The pronouns "you" and "your" refer to you as a user of the Software, and for the purposes of a license for consideration to the Software, you may only be a natural person doing business or a legal entity.
1.4. "Price List" means the price list listed on the Website containing the prices for individual licenses provided by Us, as well as the scope of their use (number of Stations, Authorized Persons, etc.) and their duration. Prices can be changed and are valid as of the date of your individual order.
1.5. "Documentation" means the documentation containing the specification of the Software and the requirements for its use (e.g. performance of the Station, supported operating system, etc.) available on the Website.
1.6. "Authorized Users" includes, but is not limited to, Your employees, consultants, contractors, students, students, and teachers whom You have permitted to use the Software pursuant to the rights granted under the Agreement. You are also an authorized user.
1.7. "Terms" means these terms and conditions together with any other documents referenced herein.
1.8. "Contract" means the contract described in par. 1.1.
1.9. "Software" is an on-premise installed profiCAD software designed especially for the creation of electrical (heavy and light current), hydraulic, pneumatic and other types of technical documentation. Individual functionalities of the Software are described in the Documentation.
1.10. A "Station" is a single personal computer, server, or other device with a supported operating system.
1.11. "Website" means Our Website https://www.proficad.com.
2. License
2.1. Licenses. Upon payment of the license fee, we grant you a non-exclusive license to use the Software and related Documentation. The license is granted solely for the internal purposes of the Authorized Users.
2.2. Trial. Only once You can obtain a 30-day free trial license for the Software from Us, which includes all the functionalities of the Software, in particular for the purpose of testing the features and Your decision to purchase a broader license. These Terms and Conditions apply similarly to the use of the Software on the basis of a trial license, with the difference that we are not responsible for any defects in the Software or for damage caused by its use, to which you expressly agree.
2.3. Demo version. On the Website, a free and unlimited demo version of the Software is available for download for non-commercial use with limited functions (the so-called home version or home version). We also provide you with a non-exclusive license to use it. The demo version is provided "as is". We are not responsible for any defects in the Software or for any damage caused by its use, nor do we provide any service for it, to which you expressly agree.
3. License Restrictions
3.1. Restrictions. The License is limited to the extent specified in the Price List for the individual licenses provided by Us, such as the number of Stations, Authorized Users, the duration of the license, the (im)possibility of commercial use, etc. Territorially, the license is not limited. You may not use the Software or Documentation to the extent that the Agreement expressly permits you to do so. In particular, you must not:
a) to the extent permitted by this limitation, statutory provisions from which the Software may not be derogated from, reproduced, or otherwise reproduced. In addition, you may not make backup copies (except for keeping the installer), distribute, lease or lend the Software, display the Software or communicate it to the public;
b) modify, decompile, disassemble, reverse engineer or otherwise interfere with the Software, or otherwise attempt to obtain the source code of the Software;
c) use any hardware or software means that associate multiple devices or users to circumvent the quantity limitation of the license (prohibition of multiplexing);
d) remove or amend any notice of rights to the Software or Documentation;
e) sublicense or sublicense or assign the license or any part thereof to third parties (other than Authorized Users), or make your license key available to third parties;
f) circumvent or violate any security used in the Software or use the Software other than as an Authorized User using your own valid access credentials and license keys. At the same time, you must not attempt to defeat the security measures of the Software in any other way,
g) use the Software for the purpose of competitive analysis of services, development, provision or use of a competing service or product, or for any other purpose that is competitive with Us;
h) use the Software in conjunction with security-critical systems or other systems in which the use or failure of the Software could result in personal injury or physical or property damage, or
i) use the Software in a manner or for a purpose that infringes intellectual property rights, other rights of third parties, or the law.
3.2. Third-party software. If the Software contains components licensed to third parties, including open source components, then those components are governed by their own terms. A list of third-party components used, if any, along with their terms and conditions, can be found in the Documentation.
3.3. Reservation of Rights. All rights in the Software belong to and remain with Us, and all rights in the Third Party Components belong to the relevant third parties. We do not grant you any license or other intellectual property right in the Software or any other works incorporated into it, except as expressly provided in the Agreement.
3.4. Delivery and license key. We will make the Software available for download from the Website. You will perform the installation yourself in accordance with the Documentation. In order to use all functionalities of the Software according to the license provided, you will be asked to enter the license key. The license key is non-transferable and non-resale and can only be used by you for the purposes and within the scope of the license granted to you. Keep the license key for possible reinstallation on a new Station. We will send you the license key within 3 working days after payment of the license fee via your contact e-mail provided in the order form on the Website.
3.5. Control. Within 3 business days of sending the license key, you can check whether the Software complies with the agreed specification. If You believe that the Software does not comply with the agreed specification (in particular, the trial version with all the features that You had the opportunity to try), You must send Us a written notice of defects with a detailed description of the non-compliance within the same period. If You do not provide Us with written notice within the review period set forth in this paragraph, You accept the Software without reservation. Acceptance under this provision also occurs if you start using the Software beyond the scope of its testing, even partially.
3.6. Deactivation. In addition to other cases arising from the Agreement or legal regulations, we may prevent you from using the Software if:
a) We receive an order from a court or public authority requiring Us to do so. Also, if we become aware that a government authority or other body with legal authority has introduced a new law, rule, regulation, interpretation or decision that would render our performance of any part of the Agreement unlawful or otherwise unlawful,
b) you fail to comply with the Agreement or use the Software beyond the rights granted or for a purpose not permitted by the Agreement, or that you engage in fraudulent or illegal activities.
4. Your Responsibilities
4.1. General. Throughout the Term of the License, You will ensure and maintain adequate security measures to protect the Software from unauthorized disclosure, use, or disclosure. You will also supervise and control Authorized Users' access to and use of the Software solely in accordance with the Agreement.
4.2. Your responsibility. You are solely responsible for:
a) familiarization with the functionalities of the Software before purchasing a license, e.g. as part of the free trial version of the Software,
b) your devices and systems, and that they meet the requirements outlined in the Documentation. If you do not meet these requirements, the Software may not function properly or may not work at all.
c) the use, security, and protection of Authorized Users' access credentials from unauthorized use; and
d) all access to and use of the Software through your devices or Authorized User access credentials, including all results obtained from such access or use and all conclusions, decisions and actions based thereon;
e) Regular backups of your drawings, symbols, and created documentation outside the Software environment (e.g. to an external hard drive, flash drive, cloud, etc.), for the loss of which we are not liable in any way.
4.3. Non-competition clause. You undertake not to develop, sell or otherwise make available to third parties any software or service that fulfils the same or similar purpose or that has the same or substantially similar functionalities as the Service or Software for the duration of the Agreement and for a period of 2 years thereafter, and that you will not assist any other person in such activity. If You breach the provisions of this paragraph, You will pay Us a contractual penalty of CZK 1 million.
5. SERVICE SUPPORT & Maintenance
5.1. Standard range. From the time you purchase the license, we will provide you with support within the scope of this Section 5. No support is provided for the use of the Software under a demo license, to which you expressly agree.
5.2. Support. Support includes answering Authorized Users' questions regarding normal use and setting up the Software in accordance with the Documentation. We provide support upon request via a form on the Website. We do not guarantee that all questions will be answered or that the problem will be completely resolved. We will make reasonable efforts to resolve the issues. Your requests for new features of the Software may not be taken into account at all. In some cases, however, We may incorporate them into the software as part of maintenance at Our discretion.
5.3. Maintenance. The essence of maintenance is to release updates and upgrades at our discretion.
5.4. Update. The update is provided free of charge and can be installed directly in the user interface of the Software. An update is a minor change to the Software, during which the version number of the Software is changed after the dot (e.g. from version 8.1 to version 8.2).
5.5. Upgrade. The upgrade is provided for a fee. To avoid accidental installations of upgrades that you did not intend to purchase, they can only be installed manually. That is, by downloading the Software upgrade from the Website and installing it manually. Upgrade means a major change to the Software, during which the main version number of the program is changed before the period (e.g. from version 8 to version 9). If you have purchased a lower version of the Software, you will be offered a 50% discount on the new version after the upgrade. If you paid for a lower version of the Software in the last 6 months prior to the upgrade release date, you have the option to download the upgraded version for free. Purchasing an upgrade is not mandatory. The pre-upgrade version of the software will continue to work, but there will be no support or maintenance.
5.6. Faulty service support performance. We have agreed that the performance of the service support provided is defective only if it does not comply with the provisions of the Contract. You undertake to complain about any defects within the inspection period, which is 3 working days from the provision of each individual performance. We are not responsible for defects complained of later and the rights arising from defects complained of after the expiry of the period/period according to the previous sentence expire. We will remove any defects confirmed by Us by repairing them or by supplying a substitute procedure in which they do not manifest themselves (workaround).
5.7. Restrictions. Support and maintenance is provided for a maximum period of 2 years from the purchase of the license and at the same time only for the current version of the Software (in terms of the version number before the period). Thus, if a new Software upgrade is released earlier than 2 years after the license purchase and you decide not to install it, you will no longer receive support and maintenance.
5.8. Sending error conditions. You agree that in order to improve the Software, We will automatically receive error conditions from the Software that occur during the use of the Software. The scope of the information submitted is limited to a technical issue in the source code of the Software and does not contain any personal data or documentation created by you.
6. Price and payment terms
6.1. Price. Prices are listed in the Price List and vary depending on the selected license. You undertake to pay us a one-off payment for the selected license on the basis of an advance invoice, which we will issue within 10 days after the conclusion of the Contract. In some countries outside the Czech Republic, it is possible to use the Digital River payment gateway, in which case you agree to their terms of use available on https://www.digitalriver.com. In both cases, we will send you a final invoice after the price is credited to our bank account. When paying through a payment gateway, contacting your bank or credit/debit card provider to refuse, cancel or challenge the charge of any amount due in connection with your use of the Software ("Chargeback") will be considered a breach of your payment obligations. We reserve the right to dispute any Chargeback received. We also reserve the right to immediately and without prior notice invalidate your license key to the Software in the event that we receive a Chargeback notice. We may take reasonable steps to limit your future use of the Software if we believe that you have requested a chargeback in bad faith.
6.2. VAT. Unless we agree otherwise, all prices are exclusive of VAT, which we will charge you in accordance with legal regulations and you are obliged to pay it in addition to the stated prices.
6.3. Other taxes. Prices do not include any other taxes or fees. If You are required to make any deduction from the payment of the Price (for example, to pay withholding income tax), You must first inform Us of this fact. We are entitled to increase the invoiced price so that we always receive the net amount that would have been due to Us without any deductions or deductions made.
6.4. Maturity. Invoices will be due at least 14 days after they are issued.
6.5. Invoicing. Invoices will be sent to you electronically to the e-mail address of your contact person provided in the order form. You will pay the price to Us by transfer to the account indicated in the invoice, using all the payment identifiers (e.g. variable symbol).
6.6. Delay. If you are in default with the payment of any amount owed, we may charge you a late payment penalty of 0.5% of the outstanding amount for each day of delay, even if it has begun. In addition, You will reimburse Us for all costs incurred in recovering late payments, including attorneys' fees, court costs and collection agency fees. If you do not pay the outstanding amount within 15 days, we may disable your access to the Software, deactivate the license key provided, and suspend the service until full payment of the amount owed. Disabling access to the Software under this paragraph does not create any obligation or liability to you or any other person. Your payment obligations are not affected by force majeure events.
6.7. License audit. We are entitled to verify the scope of use of the Software and compliance with quantity restrictions at any time by remote access. If we have a serious suspicion that you are in breach of your obligations under the Agreement, we may audit the transferee's activities in relation to the Software. The audit must be conducted in such a way as to minimize the impact on your normal operations. Where reasonable and possible in the light of the circumstances, we will inform you of our intention to conduct an audit in advance. You undertake to provide Us with all necessary cooperation and to comply with Our instructions and those of the auditors, or to ensure the cooperation of other persons. You are responsible for all costs you incur in connection with the audit.
7. Coyness
7.1. Confidential Information. In performing the Agreement, either of us (as the disclosing party) may disclose our confidential information to the other (as the receiving party). Confidential information is non-public information of a commercial, financial, technical, operational or manufacturing nature, including trade secrets, and other non-public information that should be considered confidential by the receiving party in light of its content or the manner in which it has been disclosed. This includes in particular information about business plans, know-how, prices, access data and passwords to the Service. Confidential Information is not information that is or becomes publicly known or available other than by an act or omission of the Receiving Party or was in the possession of the Receiving Party prior to the date of the Agreement.
7.2. Confidentiality. The receiving party undertakes to maintain the confidentiality of the disclosing party's confidential information. The Receiving Party may use the Confidential Information of the Providing Party only in accordance with the Agreement for the purpose of its performance. Except as necessary for the performance of the Agreement, the Receiving Party shall not disclose, disclose to others, or otherwise use the Providing Party's Confidential Information.
7.3. Allowed Disclosure. The Receiving Party may disclose the Confidential Information of the Providing Party to its personnel or associates only if it binds them to a duty of confidentiality at least to the extent required of the receiving Party by the Agreement and only to the extent necessary to fulfill its obligations under the Agreement. The receiving Party shall be liable for breaches of confidentiality caused by persons to whom it has disclosed confidential information, as if it had breached the confidentiality itself.
7.4. Exceptions. The duty of confidentiality does not apply in cases where the obligation to disclose or disclose the confidential information of the disclosing party arises from a legal regulation or a decision of a public authority.
7.5. Duration. The duty of confidentiality lasts for the entire duration of the trade secret and, in relation to other confidential information, for the duration of the Contract and for 5 years after its termination, unless the providing party discloses the specific confidential information earlier. Upon request of the disclosing party, the receiving party shall return or destroy the disclosing party's confidential information that the receiving party is not required to retain by law.
8. Legal Liability
8.1. Infringement. If, in Our opinion, the Software infringes or may infringe the intellectual property rights of third parties, We may, at Our discretion and expense, to:
a) for you to obtain the right to use the Software in accordance with the Agreement;
b) modify the Software so that it does not infringe rights and at the same time provides similar functionality.
8.2. Indemnification. You agree to indemnify and hold Us harmless from and against any and all damages, including penalties, fines and attorneys' fees, that may arise in connection with a third party's claim or claim relating to:
a) your data or the processing of your data;
b) concerning facts which, if true, would constitute a breach of any representation or obligation by you under the Agreement;
c) relating to your acts or omissions in connection with the Agreement, or
d) in connection with the use of the Software by the Authorized User that is outside the purpose, scope or method of use permitted by the Agreement or in any way contrary to Our instructions.
8.3. Disclaimer of Warranties. The Software is provided on an "as is" basis. Unless we expressly agree otherwise, we do not give you any warranty that the Software is fit for purpose, will be compatible or will work with any software, system or other services, or that it will be secure, accurate or error-free. We do not warrant that the Software will be available or that it will operate without interruption. All Third-Party Materials used, if any, including open-source materials, are provided "as is" and any representation or warranty with respect to Third-Party Materials is solely between you and the provider of the Third-Party Materials. You expressly agree to the foregoing limitation of liability.
8.4. Limitation of Liability. To the fullest extent permitted by law, we will not be liable for lost profits, inability to use or discontinuance of the Software, or for any loss, corruption, or recovery of your data or breach of its security. Our obligation to indemnify you for damages arising out of or in connection with the Agreement is limited in the aggregate. The limitation shall be 100% of the price paid by You to Us under the Agreement for the provision of the licence or for the last upgrade performed prior to the event giving rise to the claim for compensation for such damages, whichever is less.
8.5. Exclusivity. This clause 8 governs all of Our obligations under the Agreement. You expressly waive any rights not set forth herein and expressly agree to the foregoing limitation of liability. Payment of any contractual penalty shall be without prejudice to the right of the entitled party to compensation for damage caused by a breach of obligations.
9. Termination of the contract
9.1. Termination. In addition to the other rights to terminate the Agreement set out in these Terms and Conditions:
a) either of us may terminate the Agreement with immediate effect if the other person materially breaches the Agreement and is unable to cure such breach, or is able to cure but remains unremedied for 30 days after receipt of written notice from the other party of such breach. A material breach of the Agreement means in particular a breach of the licence conditions or the duty of confidentiality,
b) any of us may terminate the Agreement with immediate effect if the other party becomes bankrupt or threatened with bankruptcy within the meaning of the legislation in force on the date of termination, files a petition for the initiation of insolvency proceedings against him or her (debtor's petition), or enters into liquidation, and
c) We may terminate the Agreement with immediate effect if you fail to pay any amount within the due date and such delay lasts for more than 15 days or if you breach clause 15 of this clause. 3.1 of these Terms,
d) The Agreement shall terminate upon the expiry of the period for which the License was granted, unless another License is purchased in the meantime.
