License Agreement for Shop Software xt:Commerce 4 (EULA)

xt:Commerce GmbH
Grabenweg 68
6020 Innsbruck/ Austria

On behalf of xt:commerce International Ltd.   

Date: April 2011 

Hereinafter: Licenser 

I. Object of Agreement

The object of this agreement is the xt:Commerce XT:COMMERCE 4 shop software (basic edition) 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 - hereinafter referred to as XT:COMMERCE 4. This license agreement further governs licensing of the XT:COMMERCE 4 product family and any and all associated modules in machine readable form. XT:COMMERCE 4 is not being sold but merely licensed for the purpose of use.  

II. Scope of License

In due consideration of any potential additional contract agreements the licenser grants the licensee the non-exclusive, non-transferable right to utilise XT:COMMERCE 4 in machine readable form not subject to time restrictions and in accordance with the detailed stipulations of this agreement.    

The right of use includes operating XT:COMMERCE 4 solely on those systems specified by the customer by providing the exact domain address.  

III. Specific Restrictions

We hereby expressly point out XT:COMMERCE 4 is not under GNU/GPL. Only some code libraries are subject to separate licensing by the respective copyright holder.    

Any titles, property rights and intellectual property rights in XT:COMMERCE 4 and all copies thereof are reserved solely to the licenser. This also applies to all titles, computer codes, dialogues, concepts, and any documentation associated therewith. This does not apply to the aforementioned code libraries; the rights therein are governed by the enclosed original license. The intellectual property thereof remains reserved to the respective originator.    

The licensee is not entitled to utilise, use or copy XT:COMMERCE 4 in any way not specified within this license agreement. The licensee is prohibited from lending, relinquishing, transferring, duplicating, or otherwise making XT:COMMERCE 4 or the associated written materials available to third parties. It is further prohibited to translate, reverse engineer, decompile or unassemble XT:COMMERCE 4, create works derived from XT:COMMERCE 4 or duplicate or modify the written materials, or create works based on such. This does not include providing third parties herewith as required for the purposes of editing, configuring, modifying or adapting XT:COMMERCE 4, whereas the licensee however, is in any case liable for any violations against this agreement or violation of the licenser’s rights. For the purposes of performing the necessary modifications to XT:COMMERCE 4 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. In the event third parties are supplied with XT:COMMERCE 4 is for the purposes of editing, including partial, the actions of the third party, particularly violations of this license agreement, are deemed actions of the licensee. This does not apply to supplying companies, freelancers, agencies, designers, or similar service providers with such for the purposes of editing if these are xt:Commerce service partners licensed by the licenser.    

A sale to third parties is permissible if the third party and the licenser have first entered into a written cooperation agreement.   The licensee may not use the XT:COMMERCE 4 source code, in whole or in part, as a basis for developing his own new software, or the functionality XT:COMMERCE 4 copied as a foundation for developing similar software. The licenser’s copyright marks © may only be removed from the publicly visible footer and the source text of the website displayed with XT:COMMERCE 4 if approved by the licenser in a special written agreement in form of a separate Copyright Removal License issued by the licenser. In the event of unauthorised removal of such copyright marks the current fee for the Copyright Removal license is due and payable immediately by the licensee to the licenser.  The source code of compiled components excluded from release.  

IV. Multiple Access Prohibited

XT:COMMERCE 4 may only be installed on one computer (web server), one time only, and only one internet presence be maintained with XT:COMMERCE 4 at a time, regardless of the actual number of original copies produced by the licenser or his commissioned agents. This also applies to parts of the software with the exception of code libraries as specified under III. When using XT:COMMERCE 4 for multiple internet presences additional licenses must be obtained for for each additional internet presence. 

V. Duration of the agreement and termination

The license agreement commences upon acceptance of this EULA and does not expire. This license agreement includes any updates, bug fixes and services packs of version 4 free of charge. Support services rendered by the licenser, however, are billable and subject to a separate agreement. There is absolutely not option to upgrade to subsequent versions.  The parties are reserved the right to cancel for cause.    

Cause particularly exists in the event of the licensee violating a stipulation within this agreement. In the event the agreement is terminated the licensee agrees to promptly ensure the destruction of any copies produced since accepting the license. The limitations of liability below, however, remain unaffected. The code libraries specified under item III. are exempt from termination and their effect.  

VI. xt:Commerce 4 Failure Clause

XT:COMMERCE 4 requires customisation. Based on the expertise required for installation, utilisation and operating such web applications and the necessary qualifications the licenser does not assume any warranty for failures if the installation was performed by the licenser himself. The installation may upon request be performed by the licenser or a company commissioned or authorised as service partner by the licenser to ensure proper installation. XT:COMMERCE 4 cannot be used without extensive configuration and adapting it to the required purposes, e.g. adapting templates.  

VII. Liability

Based on providing the software free of charge the licenser’s liability is at any rate limited to intent. Further, liability is excluded in the following cases:

Liability is excluded if the source code, thus in the broader sense the functionality was modified by the licensee or a third party assigned by the licensee.

The licenser assumes no liable for the correctness and completeness of information on third party payment- and billing systems. We further assume no liability for the functionality, design or other properties rendered by third party providers.

With respect to interfaces to such systems implemented by third parties, these shall merely provide the exchange and transmission of data according to the specifications of the respective provider, so that liability is excluded.

The support and responsibility of the licenser expressly does not include functions running on provider sites or partners, again excluding any licenser liability.

Liability for data loss is in all cases limited to the typical cost of recovery which would have been incurred with regularly making backup copies appropriate for the risk. 

VIII. Licensee duty of replacement

In the event of violating a clause of this EULA the licensee shall compensate the licenser for any damages incurred. The licenser reserves the right to demand a contract penalty to be specified by the licenser in place of damages which, however, shall be appropriate in relation to the severity of the violation.   

IX. Miscellaneous

The object of this agreement does not include the installation, consultation or training for XT:COMMERCE 4. At the licensee’s request a separate agreement may be concluded with the licenser. Issuing updates, the technical and content design as well as scheduling are at the licenser’s sole discretion.

The licensee is not entitled XT:COMMERCE 4 being upgraded. Upgrading and maintaining the software is the sole decision of the licenser.

The licenser is entitled to randomly review the license terms received at his discretion. In the process solely the domain provided for this license will be reviewed.  

X. Applicable law, place of fulfilment and court of jurisdiction

Any disputes arising from this agreement are solely subject to the laws of the Republic of Austria. The place of fulfilment is Innsbruck. Provided the licenser is a registered merchant the sole place of jurisdiction is the court in Innsbruck, Austria, having subject-matter jurisdiction. The UN-CSIG expressly does not apply.

XI. Final provisions

This license agreement is final. It replaces any other communication or statements in advertising with respect to XT:COMMERCE 4 and documentation. There are no ancillary verbal agreements. Further, any amendments or addendums must be in writing. Written form includes telefax communications and/or e-mail.

In the event one or multiple stipulations within this license agreement are or become invalid, this does not affect the remaining stipulations of this agreement. The invalid stipulation shall be replaced by a valid stipulation closest to the legal and economic will of the contracting party.