concluded pursuant to provision of Section 1746 par. 2 of the Act No. 89/2012., the Civil Code, as amended
1. Contracting Parties
1.1. The Contractor:
| Firm: | Position s.r.o. |
| Registered office: | Prague 2, Londýnská 665/45, 120 00, Czech Republic |
| Statutory body: | Jiří Tulach, executive, and Petr Mašek, executive |
| Company identification No.: 26422816, tax identification No.: CZ26422816 |
The company is incorporated in the Companies Register kept by the Municipal Court in Prague, Section C, Insert No. 81053
| 1.2. The Licensee: | The party accepting Agreement proposal and agreeing with conclusion hereof. |
The Parties conclude this Agreement by which the Contractor undertakes to supply the below specified software and to transfer rights of use to the software and the Licensee undertakes to take it over and to pay the price for Software use in the case of a commercial Software use by the Licensee.
2. Subject of the Agreement and fundamental provisions
| 1) | By this Agreement the Contractor undertakes to supply the Licensee with program products for the development of Controls.js applications (hereinafter referred to as the “Software”) according to the Licensee´s order for a number of users selected by the Licensee and to transfer the right of use to the Software to the Licensee and the Licensee undertakes to pay the agreed price in case of using the Software for commercial purposes. For the purposes of this Agreement the transfer of the right of use is understood in the following manner: the Contractor shall provide the supply of authorizations to use the Software (licenses) which are granted to the Licensee by the author or person which the author granted authorization to if the author and the Contractor are different persons. |
| 2) | The Contractor hereby declares that the Software contains other works of third parties. |
| 3) | The Contractor hereby declares that it is not aware of any legal defects of the Software and pursuant to the interpretation of the license agreements of the owners of program products copyrights, if these owners are not the Contractor, it is authorized to licensed sale of the Software and to conclude this Agreement. |
| 4) | The Contractor undertakes by this Agreement to transfer the right of use to the Software and the Licensee acquires the right of use to the Software under terms listed in the subject license. |
| 5) | The Licensee hereby declares that it is well aware of the terms of the subject license, in particular the fact that the granted license rights are not exclusive and non-transferable to third parties and it is familiarized with them and it hereby undertakes to adhere to them and respect them. |
3. Methods of Software use
| A) | Use of the Software for noncommercial purposes |
| 1) | Use of the Software for noncommercial purposes is understood as any use of the Software when the Licensee does not seek profit realization and profit is not realized by using the Software. Noncommercial use is also understood as using the Software for purposes of its evaluation, testing and further development of the software under the condition that if the Software is further developed, the final product may not be of a commercial alternative nature to the software. The Licensee of the Software for noncommercial purposes shall not be provided with Software updates and its support. |
| B) | Use of the Software products for commercial purposes | ||||||
| 1) | Use of the Software for commercial purposes is understood as using the Software for the purpose of realization of profit or for the purpose of a further use of the Software as part of other Licensee´s products (final product) under the condition that the final product may not be of a commercial or noncommercial alternative nature to the Software. | ||||||
| 2) | If a party interested in purchasing the Software intends to further use or develop the Software for the purpose of creation of its own development system, system for development of web application or for the purpose of developing its own environment for website creation, it is obliged to request the Contractor to issue a special license (OEM). The license to the Software does not serve for these purposes. | ||||||
| 3) | If a party interested in purchasing the Software intends to further use or develop the Software for the purpose of its distribution jointly with HW device in the form of preinstalled Software, it is obliged to request the Contractor to issue a special license (OEM) if the total number of HW devices does exceed 1000 devices. The license to the Software does not serve for these purposes. | ||||||
| 4) | The Licensee using the Software for commercial use is entitled to provision of support services to the software product from the Contractor for the duration of the period stated in the Licensee´s order. | ||||||
| 5) | The Contractor does not provide service support to the final products of the Licensee by any means. | ||||||
| 6) | Long-term maintenance comprises of modification of the Software for the purpose of adjustment of performance and other properties. It includes the following:
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| 7) | The Licensee has the right to 50 email-support questions per year and the Contractor undertakes to provide the necessary support by replies to these questions within 72 hours on working days from receiving the question. The Contractor´s working days are Monday – Friday 8:00-17:00 (8am – 5pm) GMT +1. In the question the Licensee is obliged to state information which allows identification of its license. | ||||||
| 8) | The Licensee is obliged to immediately inform the provider in writing if the Software requires maintenance or if it does not work properly. |
4. Time, place and method of fulfillment
| 1) | The Contractor shall allow the Licensee to download the Software by an email message which shall contain link for Software download. The Licensee explicitly agrees with this method of download. |
| 2) | Software installation shall be executed by the Licensee at its own risk and expenses. |
| 3) | The Licensee undertakes to ensure that in the case of purchasing the commercial license the number of Licensee´s employees and developers, who shall be authorized to use the Software, shall be the same as the number of licenses purchased by the Licensee. |
5. Price and payment terms
| 1) | The Contracting Parties arrange the remuneration (price) which the Licensee shall pay to the Contractor in accordance with Licensee´s order made during Software order process in electronic form. |
| 2) | The above mentioned price does not include European Union value added tax (VAT) and the Licensee takes notice that the Contractor is a VAT payer. |
| 3) | The Agreed price results from currently valid price list of the Contractor for Software at the moment of conclusion hereof. The Licensee takes notice that expenses of the Contractor or expenses paid by the Contractor which are not mentioned herein are not included in amounts listed herein and the Contractor is authorized to charge these expenses individually after substantiation and the Licensee is obliged to pay these expenses to the Contractor. |
6. Ownership right and transfer of damage risk to the program products
| 1) | The Licensee is authorized to use the Software in accordance with license terms which shall be handed over to the Licensee. The Licensee is obliged to ensure respecting of these provisions and provisions of the license terms by its employees and third parties which shall be in contact with the subject Software in any way. |
| 2) | In particular, the Licensee is not authorized to operate, use, copy or change the program product other than as specified in the license terms. |
| 3) | The risk of damage to things, HW and SW, supplied to the Licensee by the Contractor shall pass to the Licensee at the moment of their takeover, respectively supply. |
| 4) | Damage to a thing, HW or SW, which originated after transfer of its risk to the Licensee, does not affect its obligation to pay the agreed price unless the damage was caused exclusively by violation of Contractor´s obligation. |
7. Warranty and responsibility
| 1) | The Contractor is responsible for ensuring that the subject of fulfillment, in accordance with individual specific agreements concluded between the Licensee and the Contractor, has the properties determined by binding standards, concluded agreements of the Parties hereof, for at least 6 months and the Contractor is also responsible for ensuring that the subject of the fulfillment is complete and without legal defects. | ||||||||||||||||
| 2) | The warranty period is 6 months and commences on the day of Software download in accordance with this Agreement. The Licensee is obliged to inform the Contractor about legal defects without undue delay after it discovers these defects. | ||||||||||||||||
| 3) | The Software has legal defects if it is burdened with a right of a third party and the Licensee has not been informed about this burden. | ||||||||||||||||
| 4) | The Licensee is obliged to inspect the subject of the fulfillment, respectively its part, at takeover and inform the Contractor about defects without undue delay after discovery of the defects, however, at the latest within the end of the warranty period. | ||||||||||||||||
| 5) | The Licensee is obliged to object defects detectable at takeover, respectively delivery (obvious defects), i.e. defects in amount and versions, at the latest within 5 working days from the takeover, respectively delivery, to the Contractor in writing. After this period the Contractor is obliged to remove such defects solely if the Licensee proves that the goods had such defects already at delivery and the Licensee could not have discovered these defects at the delivery. | ||||||||||||||||
| 6) | In a complaint, in notification of defects, the defect shall be described, eventually the Licensee is obliged to state in what way the defect manifests and the complaint and notification shall also contain the method of requested repair. According to circumstance the complaint shall also contain evidence which shall allow verification of the justifiability of the complaint. The exercised method of remedy of the defects may not be changed by the Licensee without a written agreement of the Contractor. | ||||||||||||||||
| 7) | Liability rights extinct if the complaint is not filed at the latest within the end of the warranty period. | ||||||||||||||||
| 8) | Warranty period does not run for the length of the period during which the Licensee is not able to use the things due to defects which the Contractor is responsible for. | ||||||||||||||||
| 9) | The Contractor is obliged to remove the defects claimed in the warranty period free of charge within 30 days if it is technically and legally possible and if participation of the Licensee or a third party is not required. In case of the necessity of the Licensee´s participation or participation of a third party the subject period is extended appropriately by the period for which the Licensee or a third party were obliged to execute anything, eventually for a period for which these parties were inactive. | ||||||||||||||||
| 10) | The Contractor is not responsible for deterioration of the properties of the subject of fulfillment or for damages which were caused during or after fulfillment by the Licensee, other Contractor of the Licensee or eventually any other party other than the Contractor, or for damages which were caused by unavoidable events.
In particular, the warranty does not apply to the following cases of damage of the HW, SW and the system:
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| 11) | The Contractor is not responsible for the consequences of use of the Software by the Licensee. In this regard the Contractor is simultaneously not liable for system malfunctions caused by the fact that it is used by the Licensee or third parties for activities which it was not designed for (e.g. for training, games etc.) and for a result expected by the Licensee which depends on the level of knowledge and abilities of the end Licensees of the system and on the fact that these Licensees do not make any errors or mistakes during system use. | ||||||||||||||||
| 12) | The Licensee is liable for any damages that incur to the Contractor or license author as a consequence of license terms violation, in particular as a consequence of copyright violation. |
8. Withdrawal from the Agreement
| 1) | The Contracting Parties agree that delivery of Software with irremovable defects which render the Software inapplicable in standard manner in accordance with the supplied documentation and failure to remove the defects by the Contractor by claimed method in the period of 60 working days is considered as a reason for the Licensee to withdraw from the Agreement. |
| 2) | The Contracting Parties agree that delay in payment of the agreed part of the purchase price by more than 60 days or violation of license terms is a reason for which the Contractor is authorized to withdraw from the Agreement. |
9. Governing law
| 1) | The issues which are not regulated or issues which are only partly regulated by this Agreement are subject to the law of the Czech Republic, in particular the Act No. 89/2012 Coll., the Civil Code. |
| 2) | This Agreement is concluded and interpreted in accordance with the Czech laws and other generally binding applicable norms. |
10. Final provisions
| 1) | The Agreement becomes effective and valid on the day of its conclusion by both Contracting Parties. The Agreement is concluded electronically in the English language. |
| 2) | Both Contracting Parties declare that they have read this Agreement before its conclusion and that it was concluded after mutual discussion as an expression of their free will, definitely, seriously and comprehensibly and the Contracting Parties are not under pressure or under strikingly unfavorable conditions. |
| 3) | Part of the Software is the license of third parties of conditions for provision of license to their works. |