Terms and Conditions xt:commerce Marketplace
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 customer 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. The customer confirms 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 customer free of charge, solely for the use of downloading Addons offered by Software-offerors. A right of use shall not be granted.
3.2. xt:commerce reserves all rights on the Marketplace and its parts and contents. The customer 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 customer shall apply and are to be observed by the customer.
3.3. In the event of a use of the Marketplace by the customer which is not covered by these Terms and Conditions or is in breach thereof 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 customer has to conduct the registration process on the Website and open up a customer account.
4.2. All information provided by the customer 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 customer from the future use of the Marketplace.
If any information provided by the customer becomes inaccurate (i.e. a change of the email-address etc.) the customer shall correct the information contained in his account.
4.3. Upon completion of the registration process the customer accepts these Terms and Conditions.
4.4. All log-in date (password etc.) shall be kept secret by the customer. In the event of any misuse by a third party which is based on a breach of the secrecy obligations of the customer, all actions of the third party shall be deemed as actions of the customer. The burden of proof that he has met his secrecy obligations shall be borne by the customer.
5. Agreement between customer and 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. 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.
5.3. 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.
5.4. 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 the 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
6.1. Payment shall only be made by using the payment-methods offered on the Website.
6.2. xt:commerce is billing the purchase price 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.
6.3. If the customer is entitled to a refund of the purchase price, xt:commerce guarantees for the refund for a period of six months upon conclusion of the agreement between the customer and the Software-offeror. xt:commerce does not guarantee for any further rights of the customer towards the Software-offeror, in particular not for warranty claims or liabilities.
7. Testing of Addons/Warranty and Liability/xt:commerce Certificate
7.1. 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.
7.2. 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 CUSTOMERS 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.
7.3. If an Addon on the Marketplace has been labeled with a certificate from xt:commerce („xt:commerce Certificate“) xt:commerce confirms therewit, 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. 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.
8. Removal of offers from marketplace
8.1. xt:commerce reserves the right to 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.
8.2. xt:commerce shall not be obliged to remove offers from the Marketplace, unless provided otherwise by statutory provisions.
9. Secrecy
9.1. xt:commerce uses personal data of the customer only for administration of his account and for processing his purchases on the Marketplace. The Customer expressly gives his consent to such use of his personal data. The customer 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 customers’ purchases on the Marketplace.
9.2. xt:commerce will undertake appropriate technical measures to ensure data security, in particular prevent accessibility to unauthorised persons.
10. Restrictions xt:Commerce 4 Community Edition
10.1. The customer and the Software-offeror, shall not distribute, resell, rent, lease, sublicense or loan the the xt:Commerce 4 Community Edition to any third party.
11. Change of Terms and Conditions/Governing Law/Jurisdiction
11.1. Any changes of these Terms and Conditions shall be published on the Website. The changes shall become into effect, if the customer 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 customer xt:commerce reserves the right to exclude the customer from the future use of the Marketplace.
11.2. These Terms and Conditions and any agreement between the customer 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
11.3. Any disputes between the customer 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