Terms and Conditions xt:commerce Marketplace (Seller)
1. Subject of the Terms and Conditions
1.1. xt:commerce GmbH („xt:commerce“) provides on its website addons.xt-commerce.com (“Website“) an electronic platform („Marketplace“) for third-party sellers („Software-offeror“) who offer addons (modules, plugins etc: „Addons“) for xt:commerce’s software (in particular „xt:commerce 3“ and „Veyton 4“ and subsequent versions: „xt:commerce Software“) for download.
1.2. These Terms and Conditions apply to the use of the Marketplace by the Software-offeror and for all agreements on Addons entered into on the Marketplace between the customer and the Software-offeror. If the Software-offeror agrees with the customer on the application of its own terms and conditions, these terms and conditions shall prevail.
2. Scope of service
2.1. The service on the Marketplace shall not be regarded as directed to consumers. The marketplace shall be used by natural and legal persons only, who are operating an undertaking and are of full legal capacity. xt:commerce shall not be obliged to verify if a customer or Software-offeror meets these requirements. The Software-offeror warrants that he operates an undertaking and is of full legal capacity.
2.2. xt:commerce reserves the right to change the Marketplace or to cease its services without prior notice. A permanent uninterrupted availability of the Marketplace is not warranted.
3. Use of the Marketplace/Reservation of rights
3.1. xt:commerce provides the use of the Marketplace to the Software-offeror for a consideration as set forth in Sec. 7 solely for the use of offering Addons for download.
3.2. xt:commerce reserves all rights on the Marketplace and its parts and contents. The Software-offeror shall use the Marketplace for purposes described in Sec 3.1. only. Additional policies and guidelines for the use of the Marketplace which are published on the Website or made available to the Software-offeror in any other way shall apply and are to be observed by the Software-offeror.
3.3. In the event of a use of the Marketplace by the Software-offeror which is not covered by these Terms and Conditions or is in breach thereof (in particular in breach of the Software-offerors’ duties pursuant to Sec. 5.2., 5.3., 5.4., 5.5., 6.1., 7.2., 8.1. or 11.2.) xt:commerce reserves the right to exclude the customer from the future use of the Marketplace.
4. Registration process/Secrecy
4.1. In order to use the Marketplace the Software-offeror has to conduct the registration process on the Website and open up a customer account.
4.2. All information provided by the Software-offeror during the registration process shall be accurate and complete. A registration under the name of a third person is prohibited. In the event of inaccurate and/or incomplete information xt:commerce reserves the right to refuse the registration or to exclude the Software-offeror from the future use of the Marketplace.
If any information provided by the Software-offeror becomes inaccurate (i.e. a change of the email-address etc.) the Software-offeror shall correct the information contained in his account.
4.3. Upon completion of the registration process the Software-offeror accepts these Terms and Conditions.
4.4. All log-in date (password etc.) shall be kept secret by the Software-offeror. In the event of any misuse by a third party which is based on a breach of the secrecy obligations of the Software-offeror, all actions of the third party shall be deemed as actions of the Software-offeror. The burden of proof that he has met his secrecy obligations shall be borne by the Software-offeror.
5. Agreement between customer and Software-offeror/Duties of Software-offeror
5.1. The agreement on the sale/purchase of Addons is entered into by and between the customer and the Software-offeror only. xt:commerce is not involved in the actual transaction between the customer and the Software-offeror and is not the agent of and has no authority for either party for any purpose unless otherwise set forth in these Terms and Conditions.
5.2. All offers by the Software-offeror on the Marketplace shall be accurate and complete. In particular, the Software-offeror shall inform the customer on the purchase price including all taxes and other costs and describe the functions of the Addon.
The Software-offeror shall comply with all duties to furnish information required by the applicable statutory provisions.
5.3. The Software-offeror shall not place links to websites other than those of xt:commerce within his offer.
5.4. The Software-offeror shall not use any customer’s personal information or data for other purposes than the processing of the customer’s purchase of the Addon or transmit the personal information or data to any third party. In particular, the Software-offeror shall not use the personal information or data to send the customer any direct mails or other sales promotion.
5.5. The Software-offeror warrants that he has tested the Addon and has not detected any defects (others than those which are inevitable even by using accurate programming methods) or such defects have been fixed. The Software-offeror further warrants that the Addon contains all functions described in the offer and is fully interoperable with the xt:commerce-Software unless otherwise described in the offer. Any specific technical requirements shall be described in the offer.
5.6. The agreement between the customer and the Software-offeror is executed between the parties by the customer’s confirmation of the transaction on the Website. The conditions of the purchase (price, license in respect of the Addons, warranty etc.) are those described in the Software-offeror’s offer on the Marketplace.
5.7. Unless otherwise provided in the Software-offeror’s terms and conditions, the following terms shall apply to the agreement between the customer and the Software-offeror:
(a) The Software-offeror grants the customer a non-exclusive, perpetual, irrevocable, worldwide and non-transferable license to use the Addon for xt:commerce-Software on the computer system specified by the customer with regard to the xt-commerce-Software.
(b) The Software-offeror does not warrant any defects, which only insignificantly affect the use of Addons. All rights of the customer in respect of the fitness of the Addons for a special purpose or use are excluded except such special purpose or use has been explicitly warranted by the Software-offeror.
The customer’s rights are limited to the supply with a non-defective Addon within an appropriate period of time. The Software-offeror reserves the right to grant to the customer a rescission of the contract.
(c) The software-offeror shall be liable for gross negligence and intent only. Any liability for loss of profit or other subsequent damage shall be excluded unless in the event of wilful intent. The burden of proof shall be borne by the customer.
(d) The customer and the Software-offeror agree on the jurisdiction of the court at Software-offeror’s place of business. The agreement between the customer and the Software-offeror shall be governed by the law of the state, in which the Software-offeror has its place of business, excluding the Laws of Conflict.
6. Payment/Reimbursement
6.1. xt:commerce shall bill the purchase price of the Addon to the customer on behalf of the Software-offeror. xt:commerce is acting as a receiving agent in respect of the payment. Upon receipt of the payment by xt:commerce the payment shall be deemed as received by the Software-offeror. The Software-offeror shall not bill or collect the purchase price directly to/from the customer.
6.2. If the customer is entitled to a refund of the purchase price, the Software-offeror shall reimburse the purchase price directly to the customer. If xt:commerce reimburses the purchase price to the customer due to its guarantee set forth in Sec. 6.4. of the Terms and Conditions xt:commerce Marketplace (Customer) the Software-offeror shall refund xt:commerce the payment made to the customer.
6.3. If the Software-offeror is obliged to reimburse the purchase price to the customer due to reasons attributable to the Software-offeror (in particular in the event of any defects, yet also in the event of a mutual rescission of the purchase agreement) xt:commerce shall not be obliged to refund the fee pursuant to Sec. 7.1. and 7.2.
7. Service-Fees
7.1. In consideration of the use of the Marketplace xt:commerce shall be entitled to receive a fee for each Addon sold by the Software-offeror on the Marketplace in the amount of 30 % of the net purchase price. The fee is subject to value-added taxes if applicable.
7.2. If the Addon has been labeled with a xt:commerce Certificate (Sec. 9.2.) the fee pursuant to Sec. 7.1. is 40 % of the net purchase price. The Software-offeror shall not describe an Addon as “certified by xt:commerce” or the like if no xt:commerce Certificate has been awarded. The Software-offeror shall not use an awarded xt:commerce Certificate for other purposes than the promotion of the Addon on the Marketplace.
7.3. xt:commerce shall be entitled to deduct the fees under Sec. 7.1. and 7.2. from the payments received by the customers. All monthly payments shall be set off with the fees at the end of each month and the balance shall be paid to the Software-offeror upon the 15th of the following month. If the Software-offeror does not object within seven days upon receipt of the payment the balance shall be deemed as accepted and binding between the parties. xt:commerce shall issue a credit note to the Software-offeror on the payment.
8. Third parties rights/Indemnification
8.1. The Software-offeror warrants that the Addons offered by him on the Marketplace do not violate any third parties’ rights. The Software-offeror further warrants that he has all the necessary rights to make available the Addons for download on the Marketplace and to grant the customer a license pursuant to Sec. 5.7.(a) or pursuant to the terms and conditions of the Software-offeror.
8.2. The Software-offeror shall indemnify and hold harmless xt:commerce from and against all claims, damages, losses and expenses including but not limited to attorneys’ fees arising out of or resulting from a breach of the warranty set forth in Sec. 8.1., regardless of whether or not such breach is caused by negligence.
The Software-offeror shall assist xt:commerce in any necessary way and join a lawsuit filed against xt:commerce on its side upon request.
9. Testing of Addons/xt:commerce Certificate
9.1. xt:commerce does not test and shall not be obliged to test the Addons offered on the Marketplace, in particular with regard to freedom from any defects, the existence of all asserted functions, the interoperability with the xt:commerce-Software or violation of any third parties’ rights.
9.2. If an Addon on the Marketplace has been labeled with a certificate from xt:commerce („xt:commerce Certificate“) xt:commerce confirms therewith that xt:commerce has tested the Addon with regard to the existence of all asserted functions, in particular for the interoperability with the xt:commerce-Software. Certified addons will be labeled on the Marketplace as “xt:Commerce certified”. xt:commerce, however, does not confirm that the Addon is free from any defects. By awarding the xt:commerce Certificate, xt:commerce does not make any other representations or warranties of any kind other than those aforementioned and does not assume a legal responsibility of any kind in respect of the Addon.
9.3. The xt:Commerce Certificate may be issued upon successful completion of a quality-test executed by xt:Commerce. The Software-offeror may apply for such quality-test. The quality test is subject to charges which shall not be refunded if the Certificate is not granted.
xt:Commerce reserves its right to interrupt the quality-test for a unlimited period of time, if the documentation of the Addon is insufficient or the Addon is not executable.
xt:Commerce will provide the Software-offeror with a report on any defects of the Addon or its documentation discovered during the quality test. The fixing of any defect is in the sole discretion of the Software-offeror.
The issuance of the Certificate requires the fixing of all defects discovered in the quality-test.
xt:Commerce reserves its right to refuse the issuance of the Certificate or the execution of a quality-tst with regard to a Addon.
10. Warranty and Liability
10.1. THE MARKETPLACE IS PROVIDED ON AN "AS IS" BASIS. UNLESS EXPRESSLY PROVIDED OTHERWISE IN THESE TERMS AND CONDITIONS, XT:COMMERCE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
b. THAT THE MARKETPLACE OR ADDONS OFFERED THEREON WILL MEET THE REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
c. THAT THE INFORMATION, CONTENT OR MATERIAL ON THE MARKETPLACE AND THE ADDONS OFFERED THEREON WILL BE AS REPRESENTED BY SOFTWARE-OFFERORS, AVAILABLE FOR SALE AT THE TIME OF FIXED PRICE SALE, LAWFUL TO SELL, OR THAT SOFTWARE-OFFERORS OR CUSTOMERS WILL PERFORM AS PROMISED;
d. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
e. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF XT:COMMERCE
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, XT:COMMERCE DISCLAIMS ANY AND ALL SUCH WARRANTIES.
10.2. xt:commerce shall be liable for gross negligence and intent only. Any liability for loss of profit or other subsequent damage shall be excluded unless in the event of wilful intent. The burden of proof shall be borne by the Software-offeror.
11. Removal of offers from marketplace
11.1. xt:commerce reserves the right to refuse or remove an offer from the Marektplace at any time, including without limitation if an offer violates statutory provisons, is regarded as immoral or unethical or violates third parties’ rights.
Offers shall be regarded as immoral or unethical in particular but not limited to if:
a) the promotion or offer of the Addon violates third parties’ rights (in particular copyrights, trademarks, patents, registered designs etc);
b) the Addon contains signs used by organisations which have been declared as unconstitutional or serve racist or discriminatory purposes;
c) the Addon contains pornography or serves such purposes;
d) the Addon shall be used for the purpose of distributing military weapons, arms, ammunition or parts thereof.
11.2. xt: Commerce reserves the right to remove addons from the Marketplace at any time, if an addon is not compatible with the latest version of xt:Commerce's Software version.
11.3. xt:commerce shall not be obliged to remove offers from the Marketplace unless provided otherwise by statutory provisions.
12. Secrecy
12.1. xt:commerce uses personal data of the Software-offeror only for administration of his account and for processing his sales on the Marketplace. The Software-offeror expressly gives his consent to such use of his personal data. The Software-offeror further gives his consent that his personal data may be used by xt:commerce in order to send him product related information about xt:commerce Software. xt:commerce shall not transmit the personal data to third parties unless such transfer is required by statutory provisions or necessary for processing the Software-offerors’ sales on the Marketplace.
12.2. xt:commerce will undertake appropriate technical measures to ensure data security, in particular prevent accessibility to unauthorised persons.
13. Set-off/Change of Terms and Conditions/Governing Law/Jurisdiction
13.1. The Software-offeror shall not be entitled to set off against claims of xt:commerce.
13.2. Any changes of these Terms and Conditions shall be published on the Website. The changes shall become into effect, if the Software-offeror has been informed about the changes by email addressed to his registered email-address and has not objected within four weeks upon receipt. In case of an objection by the Software-offeror xt:commerce reserves the right to exclude the Software-offeror from the future use of the Marketplace.
13.3. These Terms and Conditions and any agreement between the Software-offeror and xt:commerce in relation to the Marketplace shall be governed by the law of the state in which xt:commerce has its registered office excluding the Laws of Conflict
13.4. Any disputes between the Software-offeror and xt:commerce out of or in relation to the Marketplace shall be subject to the jurisdiction of the competent court at the registered office of xt:commerce.
Innsbruck, February 2011