Terms and Conditions
X‑Software is X‑Software GmbH, a German corporation, located at Marktstrasse 6, 87730 Bad Grönenbach, Germany.
Software means the computer programs or other kind of software in machine readable object code or in human readable script code created by X‑Software or its employees including documentation, where existing, plus any subsequent error corrections or updates supplied to the Licensee by X‑Software.
Third Party Software means computer programs or other kind of software integrated into or delivered with the Software, but not developed by X‑Software nor by its employees.
The Licensee is the party to which X‑Software grants the License to use or further distribute the Software.
End-User is either the Licensee or the party to which the Licensee may legally transfer his License.
Grant of Rights
X‑Software grants and the Licensee accepts, subject to these conditions, a time-limited license (subscription) to use the Software in a way it has been designed for by X‑Software. The Licensee may use the Software for his own purpose or he may transfer the License to some other End-User, but only on condition that these license conditions are legally imposed on such End-User.
The Software may come combined with Third Party Software, which is subject to the license conditions of their respective rights holders. The rights to such software are not granted by X‑Software, but by their rights holders. The rights are not subject to these license conditions, but to their rights holders’ conditions. Any formalities required by them should be the burden of the End-User.
Elements of the user interface of the Software may be Open Source Software, maybe legally altered. These have been licensed and transferred under the Creative Commons Conditions which will be applicable for the End-User. Restrictions of these license conditions for the Software do not apply to Open Source Software.
Data Processing by Third Party
The Software combined with Third Party Software could be subject to the data processing conditions of their respective rights holders. The Licensee is aware of this and pays attention to it.
Since the Cryptlex licensing system is an essential component of the Software, Cryptlex’s respective provisions shall apply. These provisions can be found on their website: https://docs.cryptlex.com/legal/privacy-policy and https://docs.cryptlex.com/legal/data-processing-addendum. The Licensee agrees to the inclusion of these provisions.
X‑Software makes the Software available for download. There is no physical delivery.
Besides Third Party Software being integrated into or delivered with the Software, the End-User may need to install third party software not delivered by X‑Software. The End-User will have to acquire his own license for such third party software.
During the licensed period X‑Software will provide the Licensee with updated software comprising error corrections, bug fixes, or other updates free of charge.
The license becomes effective only upon full payment of the agreed license fee.
All amounts payable by the Licensee to X‑Software shall be payable without deductions for taxes, assessments, fees or charges of any kind. The Licensee shall be responsible for paying all sales, use, excise, value-added or other tax or governmental charges imposed on the licensing or use of the Software for import or export duties or similar charges.
Protection of Software
The End-User acknowledges that the Software in any form provided by X‑Software or the Licensee is the sole property of X‑Software. The End-User shall not have any right, title, or interest in or to any such Software or copies thereof except as provided in this Agreement.
The End-User shall not alter the Software or decompile it, reverse-engineer it, copy it, translate it, or transfer it beyond the express permissions given by the license or mandatory law.
The Licensee hereby acknowledges and agrees that the Software constitutes valuable proprietary products and trade secrets of X‑Software, embodying substantial creative efforts and confidential information, ideas and expressions. Especially, the functioning of the Software in a sophistic connection with various third party software is such a secret. Accordingly, the Licensee agrees to treat the Software as confidential and protect the contents of the Software and all parts thereof from unauthorised disclosure and shall inform all persons having access to the Software about this obligation and instruct them not to violate it.
These obligations will survive the termination of this Agreement.
X‑Software represents that it is the owner of the entire right, title and interest in and to the Software, and that it has the right to grant licenses for the Software.
X‑Software represents and warrants to the Licensee that the Software when properly installed by the End-User will perform substantially according to the functionality as accessible within the Software. X‑Software warrants that the third party software, as recommended by X‑Software that needs to be used in addition to the Software has been carefully selected. Should Licensee, though fulfilling all license conditions, fail to be enabled to lawfully use the third party software, and X‑Software is not able to cure that after written notification, specifying the situation, he may return the Software to X‑Software.
Should the Software contain significant defects X‑Software may, at it’s discretion, repair such defects or deliver a new version of the Software, provided X‑Software receives written notice from the Licensee during the licensed period. If, within a term allowing for a reasonable number of attempts, these cures should fail, the Licensee may, at their discretion, withdraw from the Agreement or reasonably reduce the license fee.
Limitation of Liability
X‑Software will be liable:
for the deliberate action or the gross negligence of X‑Software or any person who acts on behalf of X‑Software;
for the violation of essential obligations under this agreement. Essential obligations are obligations which enable the proper implementation of the contract and upon the fulfilment of which the Licensee regularly may rely. In the case of the violation of essential obligations caused by ordinary negligence the liability is limited to the refund of the typical and foreseeable amount of damages;
for damage from injury to life, body or health by intention or negligence of X‑Software or any person who acts on behalf of X‑Software;
in the case of statutory mandatory liability, in particular under applicable Product Liability Acts.
The liability of X‑Software for destruction and/or loss of data will be restricted to the extent that would be necessary for their restoration, had reasonable safe guarding and archiving procedures been followed by the Licensee.
In all other cases, X‑Software is not liable.
X‑Software shall indemnify, hold harmless and defend the End-User against any action brought against the End-User to the extent that such action is based on a claim that the unmodified Software, when used in accordance with this Agreement, infringes a copyright of a third party and X‑Software shall pay all costs, settlements and damages finally awarded; provided, that the End-User promptly notifies institution in writing of any claim, that X‑Software, should they wish so, sole control of the defence and settlement thereof and End-User provides all reasonable assistance in connection therewith.
If any Software is finally adjudged to so infringe, or in X‑Software opinion is likely to become the subject of such a claim, X‑Software shall, at its option, either procure for the End-User the right to continue using the Software, modify or replace the Software to make it non infringing, or refund the fee paid, less reasonable depreciation, upon return of the Software.
Default and Termination
The License is granted for a limited period of time. It can be terminated prematurely if a party materially fails to perform or comply with these Conditions, effective on written notice. Within ten days after the License has ended, the End-User shall cease and desist all use of the Software.
All notices, authorisations, and requests in connection with this Agreement shall be sent by either electronic means or registered mail. Any notice shall be deemed to have been received, if sent by telecopy, e-mail or other electronic means, on the day of such transmission if received before 5:00 p.m. at the place of receipt, or the day following such transmission, if received after 5:00 p.m. at the place of receipt, or if sent by registered mail, five business days following the sending of the notice.
Governing Law, Jurisdiction and Venue
The validity, interpretation, construction and performance of this conditions shall be governed by the laws of the Federal Republic of Germany.
If any provisions of this Agreement shall be determined to be invalid or unenforceable under the laws or regulations of either of the countries of both parties, the validity of other provisions of this Agreement shall not be affected thereby. The parties unanimously shall then replace the invalid provision with a provision that is valid and economically the most similar regulation as the former provision.
If the Licensee should export the Software, they shall comply with all applicable laws and regulations.
The Licensee may balance accounts or withhold performance hereunder, if founded on any counterclaims against X‑Software, only if X‑Software does not deny existence of the counterclaims or a court has declared them valid without the possibility to appeal.
Standard Contract Provisions of the Licensee that contradict to any of the provisions hereunder shall not be applicable. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument in writing signed by each party’s duly authorised representative.
Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
Version 1 2021-10-26