AGD LAB - END USER LICENSE AGREEMENT
EULA - Contents
1.2.7 Late payment, termination.
2.1.1.1 Subscription License, Free License and Partnership Agreement
2.8 Usage analyses, right to audit and self-declaration.
3 Disclaimer of warranties and limitation of liability.
6 Dispute resolution and legal venue.
7.1 Limitation of Liability in case of Subscription License
7.1.1 Exclusion in certain cases.
7.3 Exclusion of Strict Liability.
EULA – Preamble
The AGD LAB end user license agreement (“EULA”) is legally binding agreement specifying legal relationship between the end user of the Software who expressed its consent with its terms by accepting it expressly or by installation, activation or other use of the Software (“you” or the “Customer”) and the author of the Software, AGD LAB s.r.o., ID: 07575211, with its registered office at Karla Englise 3221/2, 150 00 Praha 5, registered in the commercial register maintained by the Municipal court in Prague under file number C 303372 ("AGD LAB").
The “Software” is a Graphical User Interface software created by AGD LAB to which this document is attached. The Software legally is an author’s work and it is protected by applicable law against infringement of rights of authorship. By accepting the EULA you receive license in the extent as specified in EULA and the provisions of EULA become binding to you.
Terms of Use
1 Master Terms
This part of EULA contains the terms and conditions generally applicable for your contractual relationship with AGD LAB. This part of the EULA will apply to you in any case.
A contract between AGD LAB and you pursuant to this EULA shall be formed, if (i) Customer places an order within the AGD LAB web shop (such as https://www.agdlab.eu/) by clicking on the “Place Order” / “Subscribe” / “Purchase” or similarly named button, and AGD LAB accepts the order (e.g., by sending an order confirmation or license activation to the Customer); (ii) AGD LAB issues a binding quote to Customer and Customer accepts the quote within the prescribed time period set out in the quote or, if no time period is specified, within twenty-one (21) days after issuance date; (iii) Customer and AGD LAB enter into an order document or other form of contractual document; or (iv) in the case of a free-of-charge instance (i.e., Free Version, Trial Use or Test Period), when Customer downloads the Software (defined below).
If Customer acquires the Software license from an authorized dealer of AGD LAB (“Reseller”), this EULA, with exception for the payment terms, shall apply in relation between Customer and AGD LAB. Any deviating terms, warranties and commitments agreed upon between the Reseller and Customer shall not be binding upon AGD LAB.
The contractual terms and conditions as agreed in the individual transaction documents as per processes described above and the EULA together shall form the “Contract”.
Customer shall pay AGD LAB the fees or price specified in the Contract.
Unless otherwise specified in the Contract, all fees and charges shall be due immediately upon invoicing and in the currency specified in the Contract.
Unless otherwise specified in the Contract, AGD LAB shall invoice the respective fee (i) for the Subscription License at the date of the entering into the Contract, and, if applicable, subsequently at the beginning of each extension of Term and (ii) for all services provided by AGD LAB, such as UI design services, including specific UI design for a company or machine using AGD LAB’s template, iconography or specific software (“Professional Services”) (a) upfront in case of cost estimate provided in writing by AGD LAB or (b) in all other cases, monthly after the performed Professional Services.
The invoicing shall be made primarily online via an email sent to the email address provided by the Customer.
The invoiced amounts may be paid by the payment method specified in the invoice or in the Contract.
The fees and charges specified in the Contract do not include valued added tax (VAT) (including applicable withholding tax, which shall be added to the invoiced amount, if applicable). Customer is responsible for the payment of any and all such taxes. All bank charges and fees shall be borne by the Customer.
For a Contract that renews at the end of the respective Term, AGD LAB may notify the Customer of changes to the fee at least twenty-eight (28) days prior to the expiry of the term of the Contract. The Customer may object to the increase within fourteen (14) days of the notification, in which case the Contract terminates at the end of the respective Term. If the Customer does not object, the notified user fee shall apply with effect from the moment of extension of Term following the notification. AGD LAB shall inform the Customer in its notification about this effect of non-objection.
The “Term” means the duration of the Contract from the moment of conclusion of the Contract to the moment of expiration of the term as specified in the Contract. The Term can be extended by an amendment to the Contract concluded between the Customer and AGD LAB.
1.2.7 Late payment, termination
Any overdue payment shall accrue an interest at the rate provided by applicable law. In addition, the following provisions shall apply:
Reminder fee: In the case of a second payment reminder, AGD LAB shall be entitled to charge a reasonable reminder fee.
Termination in case of default: AGD LAB may terminate the Contract if the Customer defaults on the payment of the fee and fails to remedy the breach within fifteen (15) days of receiving notice from AGD LAB. Reason for termination specified does not prevent AGD LAB to (i) terminate the Contract due to other reasons specified under law or in the Contract nor (ii) to exercise any other rights and remedies of AGD LAB.
Suspension in case of default: If the Customer defaults on the payment of the fees or charges specified in the Contract, AGD LAB shall be entitled to suspend the Software temporarily (the “Suspension”) until the payments of the fees or charges are fully received by AGD LAB. However, AGD LAB shall warn the Customer of the Suspension in advance, e.g., via email. The Suspension shall not take place or respectively be rescinded without undue delay once the Customer has made his payment in full. During the Suspension, the Customer has no right to use and/or release the Software to their customers. The Customer’s obligation to pay the fees or charges specified in the Contract shall remain effective even during the Suspension.
Termination for breach of obligation. Shall any of the obligations or License conditions in this EULA be breached for any other reason than stated above, the License terminates immediately upon such breach and the Customer’s right to use the Software is deemed void. As a result, the Customer shall not use the Software which use has been covered by this EULA any longer.
The Software, the Services and Professional Services, as well as both parties’ data, documentation, and other materials provided or made accessible by a party (“Disclosing Party”) to the other party (“Receiving Party”), contain essential components (e.g. design structure, css variables, futures not yet implemented), constituting confidential information and trade secrets and shall be deemed the Disclosing Party’s confidential information (“Confidential Information”) regardless of whether it is designated as “confidential”. The Receiving Party will only use Confidential Information in accordance with the Contract and may only disclose Confidential Information to a third party if it is required to fulfil or comply with its obligations under the Contract and only if the third party is bound by confidentiality obligations which are at least as protective to the Receiving Party as those set forth in this Confidentiality section or to the extent that disclosure is required by law or to the party’s advisors bound by confidentiality if it is necessary to assert a claim.
AGD LAB complies with applicable data protection law. AGD LAB collects, processes and uses personal data of Customer in its function as a data controller as set out and in accordance with the relevant Product Privacy Notice available for download under https://www.agdlab.eu/en/privacy-policy-agdlab/
AGD LAB may process non-personal or anonymous data to improve functionality and the Customers’ experience with the Software. Customer agrees that AGD LAB owns all rights in and is free to use any such non-personal or anonymous data in any way it deems fit for development, diagnostic, corrective as well as marketing or any other purposes.
AGD LAB shall be entitled to amend this EULA, especially – but not limited to – (i) to reflect changes in Services or in business, e. g. new products or features, services or technologies (ii) for legal, regulatory or security reasons and/or (iii) to prevent abuse or harm, upon no less than twenty-eight (28) days prior notice to Customer. Unless Customer notifies AGD LAB in writing of its objection to such amendment within fifteen (15) days of such notice, then the amendment shall be deemed accepted by Customer. If Customer notifies AGD LAB in writing of its objection to such amendment within fifteen (15) days of notice, the Contract shall continue under the existing terms without giving effect to such amendment.
The Contract contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. Any inconsistent or conflicting terms and conditions contained in any purchase order or similar instrument of Customer shall be of no force or effect, unless AGD LAB has explicitly approved such terms and conditions in writing. This requirement of explicit written form approval applies in particular to Customer’s terms and conditions, regardless of whether AGD LAB provides Software or Services to the Customer in knowledge of the Customer’s general terms and conditions without explicitly objecting to them.
If any provision of the Contract is found partly or wholly invalid or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of the Contract shall remain in full force and effect. A waiver of any breach or default under the Contract shall not constitute a waiver of any other subsequent breach or default.
Unless otherwise specified in the Contract, any notifications and declarations in connection with the Contract may also be made by email. To this end, AGD LAB may use the email address the Customer provided upon registration or in the AGD LAB account. The Customer shall be responsible for checking its emails regularly and, if necessary, updating its email address. AGD LAB’s contact information is available under this link: https://www.agdlab.eu/en/contact-us/.
User manuals to the Software are retrievable online in Italian and English under https://www.agdlab.eu. Any further languages may be offered by AGD LAB at its sole discretion. As between the parties, AGD LAB retains all right, title and interest in and to such documentation and all copies, modifications and derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, know-how, trademark and other proprietary or intellectual property rights.
2 Software Specific Terms
The Software Specific Terms contain the terms and conditions that additionally apply to the use of: (i) certain software provided by AGD LAB, whether installed on devices of the Customer or accessed via web browser, also including any applications (e. g. apps for mobile terminals), addon components, customized settings and features, and all updates and Release Versions as defined herein. (ii) such software, Server Services and other cloud-based services provided by AGD LAB are hereinafter collectively referred to as “Services”.
2.1.1.1 Subscription License, Free License and Partnership Agreement
For the use of Software and/or other Server Services, Customer shall acquire the right of use (“License”) respectively as:
i. a temporary, i.e., term-based or subscription-based, license against recurring payments, unlimited (“Subscription License”); or
ii. a limited license free-of-charge, granted by AGD LAB for selected products (including Free Version, test version and Trial Use thereof) (“Free License”),
iii. a license provided to the Business Partners and their customers (“Partnership License”),
under the conditions below or further specified in the Contract.
Subscription Licenses are exclusively available to businesses and not provided to consumers. Businesses in the preceding sentence means a natural or legal person, or a partnership with legal personality, that acts in exercise of trade, business or profession while entering the Contract.
AGD LAB may provide a free-of-charge version for selected Software products to Customer solely for the personal and non-commercial purposes (“Free Version”). The use for the exercise of Customer’s trade, business or profession, or the use for the purposes for which Customer directly or indirectly receives compensation (e. g. teamwork with colleagues, free support provided to third parties which have bought Customer’s own software or other product), shall not be considered as personal and non-commercial usage.
License for Partnership are exclusively available to AGD LAB Business Partners and their customers as described by a binding contract signed between AGD LAB and the AGD LAB Business Partners. The product licensed under the License for Partnership shall be exclusively for the use of a AGD LAB Business Partner and their customers and it cannot be sold or transferred to any third party.
If the Contract provides for a test period, Customer may terminate the Contract within seven (7) calendar days from the date of the conclusion of the Contract. In such a case, Customer shall be provided with a refund of any prepaid, unused fees (if any) paid to AGD LAB for the applicable Software that is subject to the test period.
Prior to entering into a Contract, AGD LAB may offer to Customer the opportunity for a trial use for Services during a defined trial use period (“Trial Use”). AGD LAB may also provide Customer with a limited Trial Use license if Customer installs the Free Version and declares that its use of the Software is (at least partly) for commercial purposes. For any Trial Use, this EULA shall also apply.
All the Licenses are granted to Customer herein as non-exclusive, worldwide (subject to applicable export control regulations; unless Customer is expressly granted a limited right to use the Service only in a specific territory in the Contract), non-transferrable and not sub-licensable, and limited to the right to install, run and use the Software on Customer’s own devices, or on any devices in the immediate possession of Customer, for the purpose of being applied during use in operating its own activities and within the limits of the scope of use specified in the Contract.
The rights of use granted under the Contract for subscription Licenses shall be limited in time to the specified term of subscription Licenses and end with the expiry or termination thereof.
The scope of the Licenses shall not include any third-party software tools that may be linked to the Software or in any other way included or distributed with the Software. For such non-covered tools, other licenses might be required and they shall govern your use of the non-covered tools.
Customer may only provide use of its License to the Authorized Users.
“Authorized User” means: (i) Customer, if Customer is an individual; (ii) if Customer is a legal entity, any current employees, agents, representatives or temporary workers authorized by Customer to use the Software or Services solely for the support of Customer’s internal business, provided that such access and use shall be limited to their provision of services to Customer in scope of their employment or assignment; (iii) in any other cases subject to written consent by AGD LAB.
Customer is responsible for the acts and omissions of its Authorized Users, as well as any other person that accesses and uses Services by using the access credentials provided by Customer, as its own acts and omissions. All obligations of Customer under this EULA and the respective Contract shall apply fully to any such Authorized Users or other persons as if they were Customers hereunder and the Customer shall ensure of such applicability.
The usable licensed units included in the scope of license acquired by Customer, in particular regarding the amounts of licensed users or agents, managed devices, experts and annually allowed reassignments, etc., shall be specified in the Contract. If Customer exceeds the quantity of licensed units during the term of Contract, additional license fees will be charged for the excess at the then current list price of AGD LAB or, at the price decided by AGD LAB, or pro rata relating to the price provided in the Contract.
Any use of Software and/or other Services that is not expressly granted is prohibited. In particular, Customer shall not, or allow a third party to: (i) attempt to circumvent any technical devices of the Software that are directed at, or have the effect of, enforcing the terms of the EULA; (ii) modify, create derivative works, translate, decompile or create or attempt to create, by reverse engineering or otherwise, the source code or the object code of the Software; (iii) use the Software under any circumstance whatsoever directly or indirectly in a computer service business or service bureau or in a rental or commercial timesharing arrangement or as a spyware; (iv) remove, modify or obscure any copyright, trade secret, confidentiality, trademark, service mark or other proprietary rights, serial number, notice, legend or similar on any copy of the Software, or related data, manuals, documentation or other materials; (v) market, sell, lend, rent, lease, or otherwise distribute, the Software or provide access to Services to third parties; or (vi) except as otherwise expressly provided herein, assign, sublicense or otherwise transfer any rights in or to the Software. This shall not affect Customer’s mandatory statutory rights.
The Software is licensed for the exclusive use as HMI application. All the graphical components such as (i) graphics sources as icons and images in format as raster images, (ii) Scalable Vector Graphics delivered as part of The Software package, are released for exclusive use as HMI application and cannot be used for other scope.
AGD LAB may decide to extend the license for the use of the Software at its own discretion. The Customer will be notified of such extension by AGD LAB or AGD LAB will amend the EULA in accordance with the relevant provisions of the EULA.
As between the parties, AGD LAB retains all right, title and interest in and to the Software (including any customization and Release Versions) and in all copies, modifications and derivative works of the Software including, without limitation, all rights to patent, copyright, trade secret, know-how, trademark and other proprietary or intellectual property rights, even if provided to or otherwise contributed to by the Customer.
The rights of use granted shall not include any rights to the source code of the Software.
2.8 Usage analyses, right to audit and self-declaration
AGD LAB may analyse Customer’s use of the Software and/or Services for security reasons as well as for product improvement, license auditing and/or marketing purposes. To that end, AGD LAB may use, at its sole discretion, and implement technical measures regarding the functionality of the Software and/or other Services to assess whether Customer’s usage pattern is in line with the indicated usage volume and thus with the chosen license type, and to detect whether the contractually agreed scope of use is being exceeded by Customer. AGD LAB may require Customer, at any time, to provide a self-declaration regarding its actual scope of use and/or usage pattern.
3 Disclaimer of warranties and limitation of liability
Warranties in this EULA refer to the description of remedies available to Customer in case of non-performance or defective performance and shall not be construed as a guarantee that stands for strict liability without fault. A guarantee of AGD LAB for quality or committed features in the meaning of preceding clause shall only be taken as such if made by AGD LAB in writing (including a signature) and labelled expressively as “guarantee”.
The Customer expressly acknowledge and agree that use of the Software is at his own risk and that the Software is provided "as is" without any warranties or conditions whatsoever. AGD LAB as or its suppliers do not warrant that the functions of the Software will meet the Customer’s requirements or that the operation of the Software will be uninterrupted or error free. The Customer assumes responsibility for selecting the Software to achieve his intended results, and for the use and the results obtained from the Software.
AGD LAB as and its suppliers disclaim all warranties, express or implied, including but not limited to warranties related to non-infringement, accuracy or completeness of responses or results, implied warranties of merchantability and fitness for a particular purpose.
In no event shall AGD LAB as or its suppliers be liable for any indirect, incidental, special or consequential damages or for any damages whatsoever (including but not limited to damages for loss of business profits, business interruption, loss of business information, personal injury, loss of privacy or other pecuniary or other loss whatsoever) arising out of use or inability to use the Software, even if advised of the possibility of such damages.
Regardless of the form of action, AGD LAB and its suppliers’ aggregate liability arising out of or related to this EULA shall not exceed the total amount payable by the Customer under the Contract. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent allowed by applicable law.
4 Information for consumers
The Customers who are consumer bad in the European Union have right to request alternative dispute resolution (“ADR”) at a respective ADR provider. For Czech based citizens, the consumers shall contact the Czech Trade Authority (“Česká obchodní inspekce”), using an online form available at adr.coi.cz, or by email at address: adr@coi.cz
5 Maintenance
The maintenance by AGD LAB set out herein does not include (i) any adaptation of the Software to new operating systems or new operating system versions, (ii) new development environment versions (iii) adaptation of the Software to the scope of functions of competing products, (iv) establishment of compatibility with new data formats or Release Versions.
Customer may report any Errors in the Software preferably via email. The term “Error” means any defect or malfunction that causes (i) the Software to fail to perform the substantial functionality and/or expressly committed features. Minor or immaterial deviations from the agreed or assumed characteristics or just slight impairment of use shall not be deemed as Errors.
If it is in the power of AGD LAB to eliminate an Error, AGD LAB shall use commercially reasonable efforts to eliminate Errors within a reasonable period of time following Customer’s notification of such Errors, for which Customer shall provide comprehensive details of the circumstances relating to the Errors and supporting documentation (e.g., screenshots, protocol data) in its notification, as far as this is possible and can be reasonably expected. AGD LAB may, at its sole discretion, eliminate Errors by delivering patches or updates, through Release Versions or otherwise. If the elimination of an Error is not available using financially reasonable efforts within a predictable time, AGD LAB shall be entitled to provide temporary workarounds for such Error, provided that the functionalities and availability of the Services are not materially affected.
Unless the Customer is a consumer, remedies and claims for defects shall expire twelve (12) months after the circumstances giving rise to the claim have been discovered by Customer or, in the event of ignorance, twelve (12) months after Customer should reasonably have been aware of them. This shall not apply to the case of fraudulent concealment of defect, or a guarantee period explicitly granted by AGD LAB for a longer period.
6 Dispute resolution and legal venue
This Agreement shall be governed by the law of the Czech Republic, special rules for the consumers may apply depending on their domicile.
Any and all disputes arising out of the rights and obligations in Contract shall be submitted to ordinary court proceedings. Where applicable and unless stated otherwise in the Contract, the Customer accepts the court determined by the seat of AGD LAB as the exclusive legal venue under the Contract.
7 Other provisions
7.1 Limitation of Liability in case of Subscription License
7.1.1 Exclusion in certain cases
AGD LAB shall be liable for damages in accordance with the statutory provisions, if and to the extent such damages:
(i) have been caused by AGD LAB intentionally or grossly negligently, or
(ii) have been caused by AGD LAB by slight negligence and are due to breaches of cardinal contractual obligations, the fulfilment of which is essential for the proper performance of the Contract and the compliance with which can be typically expected in the case of a contract of this type (“Material Obligations”).
Any further liability of AGD LAB shall be excluded to the maximum extent permitted by law, unless AGD LAB is mandatorily liable in accordance with applicable law, in particular due to injury to life, body or health of an individual, due to the provision of an express warranty, fraudulent concealment of a defect or due to the provisions of the applicable law, especially Act No. 89/2012 Coll., the Civil Code.
The Software is a graphical design software and it will be applied to an end software by the actions of an entity different to AGD LAB, without the influence of AGD LAB in any way. Due to the character of the Software and its purpose, the liability of AGD LAB is strictly limited. The Software is provided “as is”, without no warranty hereof, including without limitation the suitability for a particular purpose. The entire risk as to the quality and performance of the Software is carried exclusively by the Customer.
The provisions of the Sec. 7 shall survive any expiration and termination of the EULA.
Notwithstanding the other applicable provision of the EULA, in the event of a slightly negligent breach of a Material Obligation, the maximum amount of AGD LAB’s liability under a Contract for Services, Professional Services, is capped by 100% of the fees paid by Customer in the last 12 months prior to the damaging event for the respective Contract that has caused the damage or that is the subject of the claim. In any case, such capped amount shall never exceed the amount of EUR 2,500, – (Euro two-thousand-five-hundred) in the last 12 months prior to the damaging event for the respective Contract that has caused the damage or that is the subject of the claim. If the maximum liability amount is not reached in one year, this shall not increase the maximum liability amount in the remaining or extended Term.
7.3 Exclusion of Strict Liability
Strict liability (liability without fault) for defects which already existed when the Contract was concluded shall be excluded.
7.4 Employees and agents of AGD LAB
The limitations of liability under the EULA shall also apply to claims against employees or agents of AGD LAB.
7.4.1 Applicable Law and jurisdiction
The Contract and any disputes in connection with it shall be exclusively governed by the law of the Czech Republic.
Unless stated otherwise in the Contract, for the resolution of all disputes arising from this EULA, the exclusive place of jurisdiction shall be Prague, Czech Republic.
Version as of August 16, 2023.
