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Terms of service

Thank you for using HiStruct cloud application!

Although we continuously do our very best to provide super-quality software solution without faults and imperfections there might occur a case where below Terms of Service need to apply. Please read them carefully since they affect your legal rights.

We are sorry that it is a long reading. However, let us believe that we contribute to the better world around you and us not just by the extraordinary service we provide but also by given rules that are public and available to every single user.

Terms of service ("Terms")

Last updated: 8.9.2020

Welcome to HiStruct,

FemCAD solutions s.r.o. (“us”, “we” or “our”) and HiStruct Building Configurator s.r.o. on behalf of FemCAD solutions s.r.o. provides website service to you when you visit our website https://app.histruct.com  and any other subdomain of histruct.com (the “Site”) and use HiStruct application (the “Service”) provided by us. Our company provides the Service subject to the following conditions.

1. AGREEMENT TO TERMS

By using our Service, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Service. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. These Terms apply to all visitors, users and others who access or use the Service.

2. PRIVACY POLICY

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Service is subject to our Privacy Policy.

3. CHANGES TO TERMS OR SERVICE

We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them or you use the Service. If you continue to use the Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms then you may not use the Service anymore. Because our Service are evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.

You also agree that it is your responsibility to check this Agreement periodically for changes.

4. WHO MAY USE THE SERVICE

(a) Eligibility. You may use the Service only if you are 15 years or older and are not barred from using the Service under applicable law.

(b) Registration and Your Information. If you want to use certain features of the Service you’ll have to create an account (the “Account”). You can request this via the Site or we may provide you the Account directly. You will be asked to provide certain personal information such as your name and email address or other personal or company information before the registration.

(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

(d) Logins. Your login may only be used by one (1) person – a single login shared by multiple people is not permitted. You may create separate logins for as many people as are permitted under the applicable Subscription (as defined below) allows. We reserve the right to access any or all your accounts in order to respond to your requests for technical support. You should safeguard all access credentials and shall ensure the confidentiality and security thereof.¨

(e) Users without registration. Our Service may be used by person without prior registration and subscription (“Anonymous User”). Features of the Service for Anonymous User may be limited.

5. FEEDBACK

We welcome feedback, comments and suggestions for improvements to the Service (“Feedback”). You can submit Feedback by emailing us at team@histruct.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

6. SUBSCRIPTION

We may make certain limited portions of the Service available for free for a trial or extended period. We require payment of a fee for use of full Service (or certain additional portions thereof) on a subscription basis (the “Subscription”). Your ability to access the Service will be terminated at the end of a trial period if you don’t purchase Subscription. At any time during the trial and thereafter, you may purchase a Subscription to continue using the Service.

(a) General. When you purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).

(b) Subscriptions. If you purchase a Subscription, you will be charged the applicable Subscription fee (which may be on a monthly or annual basis), plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each period thereafter (such period will depend on the Subscription), at the then-current Subscription Fee. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each applicable period at the beginning of the next applicable period of your Subscription during the term, using the Payment Information you have provided until you cancel your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or us. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with this Agreement.

(c) Prices. Prices for the Service, including but not limited to monthly Subscription fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time.

(d) Modifying Subscriptions. Upon upgrading or downgrading in plan level (e.g. change of additional user accounts, available languages of the Service etc.), you will be credited pro rata for the time remaining in the current billing cycle, however, you will not be refunded for any Services already rendered during the then-current subscription period. Downgrading your Subscription plan may cause the loss of features, or capacity of your Account. We do not accept any liability for such loss.

(e) Cancelling Subscription. Your purchase is final and you will not be able to cancel the purchase and/or receive a refund of your one-time payment or subscription fee at any time.

But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period.

Except as set forth above with respect to your initial subscription purchase, you will not receive a refund of any portion of the subscription fee paid for the then-current subscription period at the time of cancellation. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Service will continue until the end of your then current subscription period and will then terminate without further charges; however, you will not receive a refund for any unused Service.

7. CONTENT, CONTENT OWNERSHIP, RESPONSIBILITY AND REMOVAL

For purposes of these Terms:

(a) Content” means text, graphics, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Service.

(b) “User Content” means any user configurations of components or projects that Account holders (including you) as well as Anonymous Users using the Service within your dedicated (one or more) project spaces provide to be made available through the Service.

By making any User Content available through the Services you hereby grant to us a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, publicly display and perform your User Content for marketing purposes and in connection with operating and providing the Service and Content to you and to other Account holders.

You are solely responsible for all your User Content. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Service, nor any use of your User Content by us on or through the Service will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(c)Client” means any individual, firm or corporate body (which expression shall include its successors and assigns) which purchases services from us.

(d)Client Project Space” means an individual content of the Service that is licenced to Client and is accessible by Account holders and may or not may be accessible by Anonymous Users (by the specific web links). The licence to Client Project Space allows the Client to utilize space and or component configurations. Client own all right and interest in and to the User Content of his licenced Client Project Space.

(d) Our Service consists of the following parts:

i) “Shared Content” means various pre-existing development tools, routines, subroutines, programs, data or materials owned by us. We retain all rights, title and interest, including all copyright, patent, and trade secret rights to the Shared Content. Shared Content is licensed to you under Subscription.

          ii) “Client Content” means  any computer coded material stored in the client’s specific repository; any written or computer coded materials manifested in documentation, drawings, reports, specifications, notebooks, data and memoranda; any and all improvements, implementations and developments to the existing customer inventions, techniques, processes and methodologies; and any design methods and product definitions.

Intellectual property of the Client Content is owned by Client with the exception of generally available information (such as national standards and codes, common knowledge, printed publications and public electronic channels of any kind) which cannot be considered as client specific intellectual property.

          iii) Other third-party content is a content that the client is licenced to use by the third party.

 We provide our Service in a form of Shared Content (which may be customized at the level of Client Project Space) or Shared Content together with Client Content (resulting in custom components owned and operated exclusively by the Client).

We do not claim any ownership rights in any Client Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Client Content. Subject to the foregoing, we exclusively own all right, title and interest in and to the Service and Content, including all associated intellectual property rights. You acknowledge that the Service and Content are protected by copyright, trademark, and other laws of the European Union and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service or Content.

Removal of User Content. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Service. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

 

8. CUSTOM DEVELOPMENT

(a) Client Content is a part of our Service tailored to Client needs and is the property of a Client using our Service. Client Content is developed based on a written custom development “Order Form“. The Client agrees to check the details of the Order Form are correct and should print and keep a copy for their records. 

(b) Upon receipt of the custom software development Order Form, the services will be performed to you in accordance with the terms applicable to the services that you purchased. The nature of the services you purchased and the date of your purchase may impact the timing of performance of the services. The services will be deemed to be successfully delivered to you upon the performance of the services.

(c) Custom development specified in the Order Form is delivered for an agreed amount or an agreed rate for the development unit. The costs of the custom development project are charged per project phase or per development sprints according to the payment schedule agreed in the Order Form.

(d) Client content is continuously maintained to the latest HiStruct and FemCAD development. Costs of this maintenance are covered by the “Content Licence Subscription“. The Content Licence Subscription is given as a percentage of the Client Content development price. The percentage rate is an announced rate. Content Licence Subscription fee is subject to change upon 30 days’ notice from us. Such notice may be provided at any time but usually once a year.

(e) Client Content is interpreted by FemCAD and by HiStruct with their user interface. HiStruct and FemCAD are licensed to the client by user accounts. The cost of the license is covered by “User Account Subscription“. User Account Subscription depends on the complexity of the components available to the Account holder and the total amount of the Client’s user accounts. User Access subscription fee is subject to change upon 30 days’ notice from us. Such notice may be provided at any time.

User Account Subscription fee is charged in one of the following ways:

i) Regular payment. The Account holder is granted continual access to one or more project spaces with the possibility to create as many projects as required. The User Account Subscription fee is charged monthly. The fee is subjected to an announced rate.

ii) Pay-per-use. Specific conditions apply for pay-per-use subscription and are subject to agreement between us and client.

(f) Custom development is operated on production deployment and testing deployment. The number of production and testing deployments is agreed with the Client and specified in the Order Form. Deployments are operated only in case a valid subscription to the Client’s deployment covered by User Account Subscription exists.

(g) The Client may request that reasonable changes be made to the Order Form and tasks associated with the implementation of the Client Content.

We will be developing the required Client Content on HiStruct platform using Agile development methods. Agile development method emphasizes adaptive planning, evolutionary development, early delivery and scope of the project that can be further redefined during the development.

9. CUSTOM DEVELOPMENT BY CLIENT OR THIRD PARTY

a) Client Content can be developed by Client own resources or a third party according to the Client’s exclusive decision. The person, group of persons or company developing the Client Content of our Service is meant to be “External Contributor”.

(b) External Contributor is granted licence to the software development kit under special subscription for each individual person. Software development kit allows the External Contributor development of the Client Content on our Service (including but not limited to local HiStruct application, FemCAD script language support for Visual Studio Code, FemCAD desktop application and documentation to the extent specified by us.  External Contributor may purchase support service and request support from us to the agreed extent.

(c) HiStruct testing deployment means a deployment for Client who uses the service of External Developer. Testing deployment is an integral part of the custom development provided by External Contributor and is enabled under subscription to the Client. Client may require multiple testing deployments according to his exclusive decision. Each testing deployment contains but is not limited to the infrastructure, hosting for software development version control (GitHub storage) and Azure related database.

(d) You may cancel each and all of your testing deployments at any time by sending an email to us at team@histruct.com. Cancellation of each of all testing deployments does not affect the production deployment which remains operational.

(e) External Contributor may cancel the software development kit subscription at any time but please note that such cancellation will be effective at the end of the then-current subscription period. External Contributor will not receive a refund of any portion of the subscription fee paid for the then-current subscription period at the time of cancellation. His responsibility for all subscription fees (plus any applicable taxes and other charges) incurred for the then-current subscription period remain. If cancelled, the right to use the Service will continue until the end of the then current subscription period and will then terminate without further charges.

10. GENERAL PROHIBITIONS AND FEMCAD’S ENFORCEMENT RIGHTS

You agree not to do any of the following:

(a) Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

(b) Use, display, mirror or frame the Service or any individual element within the Service, our name, any HiStruct trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent;

(c) Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;

(d) Attempt to probe, scan or test the vulnerability of any of our system or network or breach any security or authentication measures;

(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Service or Content;

(f) Attempt to access or search the Service or Content or download Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Us or other generally available third-party web browsers;

(g) Use the Service or Content, or any portion thereof, for any commercial purpose of any third party or in any manner not permitted by these Terms;

(h) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;

(i) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;

(j) Impersonate or misrepresent your affiliation with any person or entity;

(k) Violate any applicable law or regulation; or

(l) Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

11. LINKS TO THIRD PARTY WEBSITES OR RESOURCES

The Service may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

12. TERMINATION

We may terminate your access to and use of the Services if your obligations under a subscription or custom development order are not met. We reserve the right to and may set the service offline if your obligations under custom development order are not met.

The Client Content will be transmitted to you on a digital medium six (6) months after the breach of obligations and the Service will be completely terminated.

You may cancel your Account at any time by sending an email to us at team@histruct.com. We reserve the right to and may delete Client Content from the Service within forty-eight (48) hours upon cancellation or termination of the Terms. This information cannot be recovered once your Account is cancelled or terminated. Upon any termination, discontinuation or cancellation of the Service or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

13. WARRANTY DISCLAIMERS

The services and content are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement, and any warranties arising out of course of dealing or usage of trade.

We make no warranty that the Service will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

14. INDEMNITY

You will indemnify and hold harmless FemCAD Solutions s.r.o. and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Service or Content, (ii) your User Content, or (iii) your violation of these Terms.

15. LIMITATION OF LIABILITY

(a) Neither we, nor any other party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, or damages for lost profits, lost revenues, lost savings, lost business opportunity, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute Service of any kind arising out of or in connection with these terms or from the use of or inability to use the services or content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we or any other party has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

(b) In no event will our total liability arising out of or in connection with these Terms or from the use of or inability to use the Service or Content exceed the amounts you have paid to us for use of the services or content or one hundred Euros (€100), if you have not had any payment obligations to us, as applicable.

(c) The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you.

16. DISPUTE RESOLUTION

(a) Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.

(b) Opportunity to Cure. Notwithstanding anything contained hereunder, you agree and acknowledge that no dispute resolution or litigation will be pursued by you for any breach of these Terms until and unless we have had an opportunity to cure any alleged breach.

17. GENERAL TERMS

(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the Service and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding the Service and Content. If we execute a written Order Form with you for the provision of Service (“Order Form”), the terms of the Order Form will take precedence over any terms of the Terms that conflict with the terms of the Order Form. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

The section headings in this Agreement are for convenience only and have no legal or contractual effect. The official language of these Terms is English. If there is a conflict between the English language version and any translation, the English language version will control.

(b) Notices. Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Service. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(c) Waiver of Rights. Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of us. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Contact Information

If you have any questions about these Terms or the Services, please contact FemCAD Solutions at team@histruct.com