PLEASE READ CAREFULLY THE FOLLOWING LEGALLY BINDING AGREEMENT (THIS "AGREEMENT") BETWEEN XT: COMMERCE GMBH OF GRABENWEG 68, 6020 INNSBRUCK/ AUSTRIA ("LICENSOR") AND THE INDIVIDUAL, COMPANY OR OTHER ENTITY ("LICENSEE"). 

PLEASE MAKE SURE YOU FULLY UNDERSTAND THE CONTENTS OF THIS AGREEMENT. IF YOU HAVE ANY DOUBTS ABOUT ANY OF YOUR RIGHTS AND OBLIGATIONS RESULTING FROM ENTERING INTO THIS AGREEMENT, PLEASE CONSULT LEGAL COUNSEL.

IF LICENSEE DOES NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, LICENSOR’S PRIVACY POLICY SET OUT AT https://www.xt-commerce.com/privatsphaere-datenschutz/ LICENSEE IS REQUESTED TO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.

LICENSEE IS SPECIFICALLY ADVISED THAT THE PROVISIONS OF THIS AGREEMENT LIMIT LICENSOR’S LIABILITY AND THAT LICENSOR DOES NOT PROVIDE WARRANTIES FOR THE SOFTWARE. IT ALSO LIMITS LICENSEE’S REMEDIES. LICENSEE IS ENCOURAGED TO REVIEW THIS AGREEMENT CAREFULLY.

SCOPE OF LICENSE

“Software” shall mean XT:COMMERCE 6 computer software in machine readable form recorded on a data medium or provided for download, and all utility programs, program libraries, scripts, sample files, program description, the operator guide and any and all associated written materials as well as subsequent bug fixes and updates as may be made available by Licensor from time to time at Licensor’s sole discretion and any and all associated modules in machine readable form.

Subject to Licensee’s acceptance of and compliance with this Agreement and payment of all relevant fees, Licensor grants Licensee a personal, revocable, non-exclusive, non-assignable, non-transferable right to install and use this version of the Software solely for Licensee’s purposes and through the specific domain name address (URL) as provided by the Licensee during the download process or otherwise, all in accordance with and subject to the terms set forth below in this Agreement. The Software is licensed on a per-computer (web server) and domain name address (URL). Installation or usage on additional computers and/or domain name addresses (URLs) requires the procurement of additional licenses for each additional computers and/or domain name address (URL).

OWNERSHIP

The Software and any work products created and/or delivered herein are protected by intellectual property laws and international treaty provisions. Licensee acknowledges and agrees that all right, title and interest to, and all copyrights, patents, trade secrets and/or any other intellectual property rights in, the Software and any work products created and/or delivered herein are and will remain solely the property of Licensor and/or Licensor’s licensors. Licensee is granted no title or ownership rights in the Software, in whole or in part. Licensee acknowledges that Licensor considers the Software to contain trade secrets of Licensor and/or its licensors. Such trade secrets include, without limitation, the Software, the specific design, structure and logic of individual programs, their interactions with other portions of programs, both internal and external, and the programming techniques employed therein.

xt:Commerce and/or other products, services and third party names and logos referenced herein are trademarks and/or service marks of their respective owners. No license is granted to you, either expressly or implicitly, to use any of the aforementioned except as specifically permitted by way of the Software as licensed (for example: notifying others that Licensee is using the product)

Licensee further represent and warrant that: (i) it shall comply with Licensor's guidelines; (ii) it is and shall remain in compliance with all then current applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities (including but not limited to distant sale data protections and privacy regulations); (iii) the Licensee's web sites, services, included content and deliverables delivered hereunder do not, and will not, infringe upon, violate, wrongfully use or misappropriate any third party rights including but not limited to intellectual property rights; and (iv) the Licensee's web sites, services, included content, Software and related services shall not promote, contain, link or otherwise display or allow the display of any content or materials which are sexually explicit, violent, libelous or defamatory, abusive, offensive, discriminative, infringing or are otherwise illegal.

Licensee shall indemnify, defend, and hold Licensor, its affiliates and employees harmless from any claim, damage, costs, expense, loss and other liabilities of any kind and nature arising out of or in relation to breach of this Agreement and any user or third party’s claim relating to the access to or use of the Software or Licensee's services and deliverables, including but not limited with respect to Licensee's terms of use  and privacy related statement and performance and agrees that it will pay all costs, expenses, losses and liabilities which may be assessed against Licensor or incurred by Licensor on account of such breach, infringement, violation or alleged breach, infringement or violation.

RESTRICTIONS ON USE

The Licensee is not entitled to utilize, use or copy the Software in any way not specified within this license agreement. Furthermore, the free usage of this License is only in combination with the usage of Klarna Checkout (KCO) in the product – by disabling Klarna Checkout or replacing it with another payment solution the license is terminated.


Without the prior written approval of Licensor, Licensee may not and shall not allow others to (i) distribute, , license, sublicense, , reproduce, , or share the Software and any work products created and/or delivered herein, and/or any of its rights under this Agreement; (ii) modify, disassemble, , decompile, reverse engineer, revise or enhance all or any part of the Software and any work products created and/or delivered herein or attempt to do any of the preceding, unless expressly permitted or required by applicable law; (iii) remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software; (iv) make the Software available to others in a service bureau or outsourcing arrangement or for any other commercial time-sharing, data processing or other third party use; or (v) combine the Software with any unauthorized third party software.

Additionally, Licensee will not use the Software with any open source software or other software subject to the GNU General Public License or the Lesser General Public License or any replacement or similar license schemes (collectively, “GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the Software to become subject to the terms of such GPL or otherwise grant or purport to grant any third parties rights in or to the Software or create or purport to create any obligations by Licensor (or its licensors) to third parties.

The above does not prohibit the Licensee from editing, configuring and adapting the Software to Licensee’s sole internal needs. Where Licensee utilizes third parties in order to perform the aforementioned actions, Licensee shall ensure the said third parties accept and are in compliance with the provisions of this Agreement and Licensee remains liable for such third parties’ compliance or lack thereof.

Licensor reserves the right to audit Licensee's use of the Software to ensure compliance with the terms and conditions of this Agreement, if the business processes of the Licensee are not interfered in an inappropriate manner.

For the purposes of performing the necessary modifications to xt:Commerce 6 for the licensed (domain-bound) internet presence the licensor grants the permission to install to WAMP or XAMP or similar local web environments for offline editing.

TERM AND TERMINATION

The license as granted in this Agreement commences upon the Licensee’s acceptance of this Agreement and shall remain in effect until terminated. Upon termination or expiration of this Agreement for any reason: (i) all rights and licenses herein shall automatically revoke; (ii) Licensee will immediately cease use of the Software  and shall destroy all the copies and Installations of the Software; and (iii) Licensee shall promptly return to Licensor all documents and other tangible property representing the Licensor’s Confidential Information, shall erase/delete any such confidential information held by it in electronic form, and shall confirm in writing to Licensor that it has complied with its obligations under this Section.

LIABILITY

Claims for damages of any sort against the Licensor are excluded when it, its lawful representatives, or its vicarious agents have caused the damage by ordinary negligence. This exclusion of liability does not apply should there be bodily injury, should a contractual guarantee have been assumed, or should important contractual obligations have been violated in a way that endangers the fullfilment of the contract. In such cases, however, by negligent violation of important contractual obligations, the liability of the Licensor is limited to customary and foreseeable damages. Claims arising from product liability law are not affected by this section.

With the exceptions of claims arising from liability for defects, claims arising from product liability law, or claims due to damage to life, body, or health, claims for damages expire one year after the customer learns about the damage and that it is compensable, or, should, without gross negligence, have learned about the damage and that it is compensable.

SERVICES

The Software may not be used without expertly and professionally performed installation, implementation, configuration, adaptation and customizations, qualifications and expertise which the Licensee is encouraged to acquire prior to attempting such activities. The aforementioned services are not part of this Agreement. Licensor may be engaged by the Licensee to perform such activities and others on behalf of the Licensee yet such services and the provision thereof shall require a separate engagement and fee as they are outside of the scope of this Agreement.

The license granted herein is limited to the Software version as defined (i.e. upgrades not included). Bug fixes and service packs to the Software may be made available by Licensor at its sole discretion yet Licensor is not obligated to issue any.

Support services may be made available by Licensor and the provision thereof shall require a separate engagement and fee as they are outside of the scope of this Agreement.

Notwithstanding, Licensor reserves the right to stop offering and/or supporting the Software or part of the respective services at any time either permanently or temporarily.

CONFIDENTIALITY

Each party undertakes to the other to treat as confidential and not to use or exploit any information supplied or made available by the other party under this Agreement which is designated as confidential by it or which is by its nature clearly confidential, provided that this clause shall not extend to any information which was rightfully in the possession of the other party prior to the commencement of the Services or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause). Neither party shall divulge any confidential information to any person except to their own employees, sub-contractors or agents and then only to those employees, sub-contractors or agents who need to know the same and who are bound to such party by similar confidentiality obligations. Notwithstanding the preceding paragraph, Licensor shall also be permitted to disclose such information to its affiliates.

FEES AND PAYMENTS

Where fees are due pursuant to this Agreement and otherwise, except as expressly provided otherwise all  amounts are due and are payable by Licensee to Licensor within five (5) days of the date of each invoice issued by Licensor.

All bank transfer and charges shall be borne by Licensee. In addition to the above, Licensee shall pay any tax and/or charge which is imposed (either now or in the future) by law (either present or future) including but not limited to, value added tax and withholding tax. Such taxes and/or charges shall be paid together with the Fees. Failure to pay the Fees on or by the due dates shall be conclusively presumed to be a material breach of this Agreement and shall, at Licensor’s sole discretion, entitle Licensor to immediately terminate this Agreement and/or exercise any and all remedies available to it by law or contract, including without limitation the right to asses interest at the maximum rate applicable under law.

THIRD PARTY COMPONENTS, PRODUCTS AND SERVICES.

The Software may include or make reference to third party products and services (as an example only: code libraries). Such third party products and services are not controlled or monitored by Licensor and are at all times subject to the respective terms of conditions as set forth by the third party products and services respective owners and providers and unless specifically mentioned to the contrary this Agreement shall not apply.

Before using third party products and services, Licensee is encouraged to read and understand those products’ and services’ terms of use and privacy policies to ensure Licensee agrees to their terms.

MISCELLANEOUS

Governing Law and Venue. This Agreement shall be governed by the laws of Austria, without giving effect to its choice of law principles.  The Parties hereby acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Only the authorized court in Austria will have the exclusive authority to discuss any claim of the interpretation, execution and/or violation of this Agreement.

Publicity.  Subject to the confidentiality obligations of the parties, the parties agree that they shall be entitled to issue one or more press releases disclosing the relationship entered into hereby.  Each party may refer to the other party in its public filings and/or marketing materials as a customer or vendor, as applicable and use the other party’s trademarks where applicable.

Entire agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter hereof and thereof.

No waiver. Failure or delay of Licensor to exercise any right, power or remedy under or to require or enforce strict performance by Licensee of any provision of this Agreement and any supplemental or incorporated documents or policies shall not be construed as a waiver or relinquishment of any such right, power or remedy.

Force Majeure.  Licensor is excused for any delays, losses, or damages due to causes beyond its control, including without limitation, fire, explosion, power irregularities or surges, acts of God, earthquakes, rains, floods, lightning, labor unrest, strikes, strife or any other cause that was not reasonably foreseeable on the date of signing of this Agreement.

No assignment. This Agreement or any part thereof may not be transferred, assigned novated or otherwise by any party without the advance written consent of the other party; provided that Licensor shall be entitled to transfer, assign or novate this Agreement as a whole to any of its affiliates or as part of a merger, a sale of all of its shares or assets or any other change of control transaction.

Notice. Any notice required or permitted hereunder shall be in writing and shall be delivered by overnight courier or by confirmed facsimile to the relevant parties hereto at the respective addresses set forth above (as may be changed by each of the parties from time to time). Any notice shall operate and be deemed to have been served on the second business day (in the place of receipt) after the date of delivery to the overnight courier, or upon transmission by confirmed fax.

Severability. If the event any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement or section, but rather the entire Agreement or section shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of the parties shall be construed and enforced accordingly.

Right to Injunctive Relief.  Licensee acknowledges that its breach of the provisions under this Agreement may likely cause irreparable injury to Licensor and may entitle Licensor to seek injunctive or other equitable relief in the event of any such breach.

The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

This Agreement can be modified only by a written amendment signed by persons duly authorized to sign agreements on behalf of the parties.

Where Licensor provides with a translation of the English language version of the of this Agreement or any other document, the parties agree that the translation is provided for Licensee’s convenience only, does not come to modify the English version and that the English language versions govern the relationships.

Innsbruck, 01.10.2018
