XCritical TRADING TERMINAL

End-User License Agreement

Please read this End User License Agreement (hereinafter “Agreement”) before continuing with the product installation. 

This Agreement between You and www.xcritical.in, the owner of XCritical TRADING TERMINAL (as defined below), govern the use of the Product on any device where it shall be installed, either by You or any third parties. www.xcritical.in is a software development company and does not provide or offers any kind of financial, investment, brokerage, trading and data feed services in any local or international currency, stock market or exchange.

You can accept this Agreement by clicking on the "Continue", "Accept" or similar icon or by using the relevant link and/or using the Product. You can find the relevant text of the current Agreement in the Legal section of the website at https://www.xcritical.in. We recommend that You print and keep a copy of this Agreement for your records.

You hereby consent to the use of electronic communication in order to enter into contracts, place orders and create other records, as well as to the electronic delivery of notices, policies and records of transactions initiated or completed via the Product.

Furthermore, You hereby waive any rights or requirements under the laws or regulations of the jurisdictions which require an original non-electronic signature or delivery or retention of non-electronic records, to the extent permitted by applicable mandatory law.

If You are a resident of a jurisdiction where the download or use of the Product is prohibited by law due to different requirements or a complete ban on the use of the Product in such jurisdiction, do not install or use it.


1. TERMS AND DEFINITIONS

1.1. For the purposes of this Agreement, the following terms shall have the meaning and are defined as specified below:

Product: means the Trading Terminal for using on various mobile computers or devices which represents trader's workstation and enables traders to trade in the financial markets via the Financial Institutions they enter into agreement with. In addition to its updates, upgrades, revisions and new versions, the Product includes the following main components:

- Trading Terminal is a component designed for trading in the financial markets through the services of Financial Institutions;
- Network protocols are secure network protocols of data transmission designed for interaction between the Product and the XCritical's Software, as well as online services and any XCritical's or its partners' Websites;
- Program Interface is a set of tools that allow the end user to interact with the Product, including, but not limited to, the following elements of the Product graphics: button, radio button, check box, icon, list box, tree view, text box, grid view, menu, window, tab, toolbar, scrollbar, slider, status bar and tooltip;
- Documentation is any citations and/or records and/or articles and/or general text, manuals, guides, system and or components description and any materials published on-line or otherwise provided by www.xcritical.in, including, but not limited to, .CHM files installed together with the Product or downloaded in the course of its use.

Effective Date: means the date on which this Agreement is entered into by clicking on the "Continue", "Accept" or a similar icon in accordance with the procedure described above or upon use of the Trading Terminal by You, whichever occurs first.

Additional Terms and Conditions: means the terms and conditions and policies applicable to the use of the XCritical's Software, Products and any Website of www.xcritical.in, published or declared in addition to this Agreement.

XCriticalis a trademark of www.xcritical.in, a software development company.

Content: means any and all content, consisting of text, sounds, pictures, photos, video and/or any type of information or communication.

IP Rights: means patents, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow, trade secrets and confidential information; all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or come in existence in the future; applications, pending applications, extensions and renewals in relation to any such rights.

XCritical's Online Materials: means Content available for download on any XCritical Website, as well as any amendments thereto which XCritical may make at its sole discretion.

XCritical’s Promotional Materials: means any and all trademarks, names, brands, signs, logos, banners, and any other materials, in whatever form, owned and/or used by XCritical for the promotion of the company, its products, services and activities.

2. LICENSE GRANT AND RESTRICTIONS

2.1. License. Subject to the terms and conditions of this Agreement, XCritical hereby grants You a limited, individual, non-exclusive, simple, non-sublicensable, non-assignable, non-transferable, free of charge license to download, install and use the Product solely with the use of XCritical's Software on Your mobile device (phone, smartphone, communicator, tablet or mobile computer) for organizing a trader's workstation and trading in the financial markets via Financial Institutions with which You enter into separate contractual relations.

This license does not grant You any right to any version enhancement or update, or guarantee the continuous availability of the Product or XCritical's Software. XCritical may revise, modify, cease to provide or require You to immediately cease using the Product, XCritical's Software or its functionalities or any part thereof, which may result in loss of compatibility, access to functionalities of the XCritical's Software or XCritical network, system, any XCritical's Website, servers, tools, information and databases, or other commercial activities related thereto, from time to time, without prior notice.

2.2. No Granting of Rights to Third Parties. You shall not sell, assign, rent, lease, distribute, export, import, or otherwise grant rights to use the Product or any part thereof to a third party.

2.3. No Product Modifications or Decompilation. You undertake not to knowingly or unknowingly cause, permit or authorize the modification, translation into other languages, creation of derivative products or services, reverse engineering, decryption, decompilation and/or disassembling of the Product and any components and parts thereof, gaining unauthorized access to databases and Network protocols and compromising the integrity of the Product's security system and modifying the Product's Program Interface in any way. At all times, You shall comply with the requirements and specifications relating to the Product's design, use and presentation at all times. This clause survives termination of this Agreement.

2.4. Third Party software. The Product may be incorporated into, and may incorporate itself, into software and other technology owned or controlled by third parties. The use of any such third party software or technology incorporated into the Product shall fall under the scope of this Agreement.

When you use a third party software/service, you will be subject to its terms and licenses (if applicable) and you agree to comply with such provider’s terms of software/service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them.

www.xcritical.in will have no obligation whatsoever to support or maintain any such Third Party Software/Service, nor will www.xcritical.in have any liability, regardless of the nature of the claim or the nature of the claimed or alleged damages, including, without limitation, direct, indirect, incidental, consequential or punitive damages, for any claim arising from or related to the use or distribution of the Third Party Software. www.xcritical.in also disclaims any and all representations and warranties, express, implied or statutory, with respect to any and all such third party software/service, including without limitation, any warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, title, non-infringement, quiet enjoyment, and/or non-interference.

Any and all third party software or technology that may be distributed together with the Product will be subject to You explicitly accepting a license agreement with that third party. You acknowledge and agree that You are not entering into a contractual relationship with XCritical or its Affiliates regarding such third party software, technology and/or service and You will reach solely to the applicable third party to enforce any of Your rights and not to XCritical or its Affiliates.

2.5. Exclusive Ownership. You acknowledge and agree that any and all IP Rights in the Product, XCritical's Software, any XCritical's Website, XCritical's Online Materials and XCritical's Promotional Materials are and shall remain the exclusive property of XCritical. Nothing in this Agreement intends to transfer to/or vest in You any such IP Rights.

You are only entitled to the limited use of the licensed Product granted to You under this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is in violation of this Agreement, as well as a violation of the international intellectual property laws and treaties, including without limitation copyright laws and trademark laws.

All title and IP Rights in and to any third party content that is not contained in the XCritical's Software, but may be accessed through use of the XCritical's Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This clause survives termination of this Agreement.

2.6. No Removal of Notices. You agree that You shall not remove, obscure, make illegible or alter any notices or indications of the IP Rights held by XCritical, whether such notices or indications are affixed on, contained in or otherwise connected to any existing materials.

2.7. You agree to maintain the value and reputation of XCritical's Software, the Product, XCritical's brand or name, to the best of Your abilities.

2.8. You shall not use the Product in any third-party Software Application that in XCritical’s opinion is actually or potentially fraudulent or inappropriate or contrary to the provisions of this Agreement or any Additional Terms.

2.9. You agree that the services and products You provide/receive using the Product, shall be provided in compliance with all applicable laws and regulations (including without limitation those relating to the protection of privacy and the processing of personal data or traffic data).

2.10. You agree that You are solely responsible for (and that XCritical has no responsibility to You or to any third party for) any services and/or products You provide/receive using the Product.

2.11. You hereby specifically acknowledge that Your rights to use the Product are strictly subject to full compliance with this Agreement, and any breach of any provision of this Agreement or any applicable Additional Terms and Conditions shall give rise to automatic right of termination by XCritical and the prohibition to use the Product.

2.12. Nothing in this Agreement will give You any right to use the XCritical's Promotional Materials, including without limitation the XCritical's trademarks and logos. This clause survives termination of this Agreement.

2.13. XCritical reserves the right at its sole and absolute discretion to amend, change, add or remove portions of the End-User License Agreement and Additional Terms and Conditions at any time, on a general or individual basis, for any reason, by publishing the revised Agreement and Additional Terms and Conditions on XCritical's Website or by otherwise notifying You of the amendments. Such changes shall be effective immediately upon posting the revised version on the website www.xCRITICAL.net. Continued use of the Product shall constitute Your acceptance to be bound by the terms and conditions of the revised End-User License Agreement and Additional Terms and Conditions. You must constantly monitor XCritical's Website to ensure that You are aware of any changes in the End-User License Agreement or any other applicable Additional Terms and Conditions. In the event You do not agree with any changes in any applicable legal document, You shall immediately cease any and all use of the Product and, where applicable, any and all use of the XCritical’S Software.

2.14. You shall not reverse engineer, decompile, disassemble or otherwise modify XCritical's Software or engage in any other similar activity in relation to XCritical's Software or any part thereof, without the prior written consent of XCritical. In addition, You undertake not to knowingly or unknowingly cause, permit or authorize the modification, translation into other languages, creation of derivative products or services, reverse engineering, decryption, decompilation and/or disassembling of the XCritical’S Software and any components and parts thereof, gaining unauthorized access to databases and network protocols and compromising the integrity of the XCritical's Software security system and modifying the XCritical's Software Program Interface in any way. Besides, You shall comply with the requirements and specifications relating to design, use and presentation of the XCritical's Software, at all times.

2.15. You acknowledge and agree that the use of the Product and XCritical’S Software shall be at Your own risk and account. You agree, on demand, to indemnify, defend and hold XCritical, its Affiliates and Staff harmless from and against any and all liability and costs (including reasonable attorneys’ fees) incurred by such person, in connection with or arising out of: (a) using the Product or the XCritical’S Software, or (b) any breach or violation of the terms and conditions of this Agreement. This clause survives termination of this Agreement.

2.16. In the event that You wish to use the Product in a manner other than as expressly set out in this Agreement, such use is expressly prohibited unless and until XCritical grants You a specific license in writing.

2.17. IP Rights.

2.17.1. As between You and XCritical, XCritical retains all the IP Rights in and to the XCritical's Software (including the Product) and any derivative works thereto created by or for XCritical. This clause survives termination of this Agreement.

2.17.2. If You are an employee or director of a Business (Legal entity) and You use the Product on behalf of that Business, You acknowledge and agree that: (i) by accepting this Agreement and using the Product, You do so on behalf of the Business and with the express authorization of the Business that You and the Business shall be bound by this Agreement in respect of the use of the Product; (ii) the license granted by XCritical to use the Product is subject to obtaining all necessary consents, permissions and authority from the Business to act on its behalf according to this Agreement. You represent and warrant that You have obtained such consents, permission and authority to use the Product on behalf of the Business. If You do not have such authority, then You do not have a license and should not use the Product.

2.18. Utilization of Your Computer. The XCritical’S Software (including the Product) may utilize resources of Your computer (or other applicable device) You are utilizing, including, but not limited to, CPU, memory and network connectivity for the limited purpose of providing the functionality of the Product and establishing connection with the XCritical’S Software. XCritical will use its commercially reasonable efforts to protect the privacy and integrity of Your computer resources and Your communications. However, You acknowledge and agree that XCritical does not give any warranties in this respect.

2.19. Updates to and New Versions of the Product and the XCritical’S Software. XCritical in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Product and the XCritical’S Software. You acknowledge and agree that XCritical has no obligation to make available to You any subsequent versions of the Product and XCritical’S Software.

From time to time, the Product may download and install updates automatically. These updates are required to maintain software compatibility, provide security updates or debugging, or offer new features, functionality or versions. You agree to receive such updates from XCritical in order to continue using the Product and the XCritical’S Software. You further agree that You may have to enter into a renewed version of this Agreement, in the event you download, install or use a new or updated version of the Product or the XCritical’S Software.

2.20. Suspension. XCritical may, at its sole discretion and without prior notice, modify or discontinue or suspend Your ability to use the Product or any version of XCritical's Software or terminate the license granted to You under this Agreement, at any time, with immediate effect and without recourse to the courts, for the repair, improvement, and/or upgrade of XCritical's Software or for any other justifiable reason, including but not limited to, circumstances where You are found to be in breach of the terms and conditions under this Agreement and/or any additional Terms and Conditions, causing possible legal liabilities for XCritical, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.

2.21. Lawful Purposes. You will use the XCritical Software solely for lawful purposes. In this respect You shall not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You; (b) use any type of program codes that are designed to distort, delete, damage or compromise the integrity of XCritical’S Software or the communication; (c) use or attempt to use XCritical’S Software or Website in violation of any applicable laws in any jurisdiction (d) use or distribute any material or content that is subject to a third party's proprietary rights, unless You have a license or permission from the owner of such rights; (e) modify, translate into other languages, create derivative products or services, reverse engineer, decompile and/or disassemble XCritical’S Software and/or any parts thereof, gain unauthorized access and compromise the integrity of databases, gain unauthorized access and compromise secure network protocols of data transmission, compromise the integrity of XCritical’S Software security system. This clause survives termination of this Agreement.

2.22. Privacy policy and personal data protection. If you use the Product or any XCritical’S Software or Websites, as well as their individual functions or services, we might collect information about you.

We may collect non-personal information about your use of our Software Applications, visit on our websites or use of additional services, including pages you have viewed, links you have clicked, as well as other actions related to your use of our applications or services. We may also collect certain technical information about your mobile device or PC, such as your IP address, the type and model of your device, the user-defined device name, the type and version of the operating system, information about your time zone and geo location, as well as device language and localization information.

We collect your personal information, including information that you provide when you register in the Product, XCritical’s Software or sign up for our websites' services. "Personal information" means any data that can be used to uniquely identify a person, such as name, email address, phone number or credit card information.

The product can connect to trade servers of financial companies, and You should enter into separate agreements with such companies for rendering appropriate services. The Product may transmit to such financial companies your personal and payment information necessary for the Product to operate or for the financial company to provide you with appropriate services.

We use personal and non-personal information provided to us electronically via the Product or XCritical’S Software or Websites to, inter alia, register users, administer and improve our applications and associated services, to analyze the application use statistics and policy, as well as for other purposes approved by you separately in additional agreements or conditions accepted by you.

We also use your personal information to communicate with you in other ways. For example, if you contact us via a Software Application, we may use your personal information to respond. This information is also used for statistical analysis to tailor content to usage patterns.

We may combine personal information we collect from you with personal information provided by other users, in a non-identifiable format, thus creating aggregate data. We plan to analyze aggregate data mainly to identify group trends. We do not link aggregate user data with personal information and aggregate data can therefore not be used to contact or identify you. We will use usernames instead of actual names when creating and analyzing aggregate data. For statistical purposes and tracking group trends, anonymous aggregate data may be shared with other companies with which we have relationships.

Personal and confidential data processing in our company is carried out on a legal and fair basis and is limited to the achievement of specific, pre-defined and legitimate objectives. The processing is applied only to the personal data, which meet the objectives of such processing. The content and volume of processed personal data correspond to the stated processing objectives. No redundancy of the processed data is allowed.

In order to ensure the security of personal data during processing, we take the necessary organizational and technical measures to protect such personal data against unauthorized or accidental access, destruction, modification, blocking, copying, provision, distribution, as well as other unlawful acts regarding personal data. Nonetheless, we cannot guarantee that misuse of your personal information by infringers will not occur.

Keep the passwords of your accounts in a safe place, and do not disclose your account details to any third party. If you become aware of any unauthorized use of your password or any other breach of security in our Products or services, please contact us immediately.

The use of the Product or any XCritical's Software or Websites is governed by the terms of the separate www.xcritical.in privacy policy and terms of personal data processing located on the Internet in the Legal section of the XCritical's website at https:\\www.xcritical.in. Use of the Product without accepting the terms of the privacy policy and terms of personal data processing and the applicable End User License Agreement is not permitted.

If you do not accept the privacy policy and terms of personal data processing or the current End User License Agreement, you must not download or use our Product.

2.23. The Product requires an Internet connection for its functionality. You shall be responsible for any and all costs incurred by use of the Internet as a result of Your use of the Product or the XCritical's Software.

2.24. Representations. You represent and warrant that You are authorized to enter into and comply with this Agreement. Furthermore, You represent and warrant that You shall meet Your obligations under this Agreement and comply with any and all laws, regulations and policies that may apply to the use of XCritical's Software, the Product and/or XCritical's Website, at all times.

2.25. INDEMNIFICATION. YOU AGREE TO FULLY INDEMNIFY, HOLD HARMLESS AND DEFEND XCritical, ITS AFFILIATES AND XCritical’S EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, DAMAGES, LIABILITIES, LOSSES, SETTLEMENTS, JUDGEMENTS, COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES AND COSTS, WHETHER OR NOT INVOLVING A THIRD PARTY CLAIM, WHICH ARISE OUT OF OR RELATE TO (A) VIOLATION OR BREACH OF ANY TERM, OBLIGATION, REPRESENTATION, WARRANTY OR DUTY CONTAINED IN THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR (C) USE OR MISUSE OF THE PRODUCT OR XCritical’S SOFTWARE, OR (D) COMMUNICATION SPREAD BY MEANS OF THE PRODUCT OR XCritical’S SOFTWARE. This clause survives termination of this Agreement.

2.26. You may use the Product in any country, in accordance with the terms and conditions of this Agreement.


3. TERM, TERMINATION, UPDATES

3.1. Term. This Agreement shall become effective as of the Effective Date (upon acceptance by You) and shall remain effective until terminated by either party as set out below. The Additional Terms and Conditions shall become effective as of the date upon which they are accepted by You or Your use of the relevant XCritical product and/or service, and will remain effective until terminated by either You or XCritical in accordance with the provisions specified herein.

3.2. Termination. You may terminate this Agreement at any time. Without limiting other remedies, XCritical shall limit, suspend, or terminate this product license and use of XCritical’S Software, prohibit access to XCritical’S Website and delete Your User Account and/or Login, with immediate effect, automatically and without recourse to the courts, if XCritical reasonably believes that You are in breach of this Agreement, causing potential legal liabilities against XCritical, engaging in fraudulent, immoral or illegal and unlawful activities, or for other similar reasons.

3.3. Consequences of Termination. Upon termination of this Agreement and the Additional Terms and Conditions: (a) the License and rights to use the Product and Software shall immediately terminate; (b) You must immediately cease any and all use of the XCritical’S Software; and (c) You must immediately remove the Product and XCritical’S Software from all hard drives, servers and other storage media and destroy all copies of XCritical’S Software in Your possession or under Your control.

3.4. New Versions. XCritical reserves the right to change this Agreement at any time by publishing the revised Agreement on XCritical’S Website at https://www.xCRITICAL.net. The revised Agreement shall become effective upon the date of such publication or upon Your express acceptance of the revised Agreement by clicking on the "Continue", "Accept" or a similar icon or using the relevant link. Your continued use of the Product shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.


4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

4.1. No Warranties. YOU AGREE THAT XCritical HAS MADE NO EXPRESS WARRANTIES REGARDING THE PRODUCT AND XCritical’S SOFTWARE WHICH ARE BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND; XCritical HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE PRODUCT AND XCritical’S SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. XCritical FURTHER DOES NOT REPRESENT OR WARRANT THAT XCritical’S SOFTWARE WILL ALWAYS BE AVAILABLE AND ACCESSIBLE, THAT ITS OPERATION WILL BE UNINTERRUPTED, TIMELY, SECURE AND ERROR-FREE OR THAT ANY COMMUNICATION WILL BE COMPLETE AND ACCURATE. NOR DOES XCritical WARRANT ANY CONNECTION TO OR TRANSMISSION OF DATA FROM THE INTERNET, MADE THROUGH THE XCritical’S SOFTWARE.

4.2. Your Own Risk. You acknowledge and agree that You assume any and all risks arising out of the use of the Product and XCritical’S Software, to the maximum extent permitted by law.

YOU UNDERSTAND AND AGREE THAT XCritical IS A SOFTWARE DEVELOPMENT COMPANY AND DOES NOT PROVIDE OR OFFER ANY KIND OF FINANCIAL, INVESTMENT, BROKERAGE, TRADING AND DATA FEED SERVICES IN ANY LOCAL OR INTERNATIONAL CURRENCY OR STOCK MARKET. NOR XCritical IS INVOLVED DIRECTLY OR INDIRECTLY IN ANY RESPECT IN ANY COMMISSION BASED PAYMENTS CONCERNING ANY TRADING OPERATIONS WHATSOEVER AND YOU SHALL INDEMNIFY AND HOLD HARMLESS XCritical AGAINST ALL AND ANY LIABILITY ARISING OUT OF THE USE OF THE PRODUCT AND XCritical’S SOFTWARE WHETHER OR NOT INVOLVING A THIRD PARTY CLAIM.

You acknowledge and agree that the product is hosted by a Financial Institution, independent from XCritical. All activities carried out or received by You are subject to an agreement between You and the Financial Institution that shall offer You financial services. It is at Your sole and absolute discretion to enter into such agreements and in no event shall XCritical be liable for Your activities using this product.

Neither the information, nor any opinion, trading tools or services contained in this product constitute a solicitation or offer by www.xcritical.in ("XCritical") or its affiliates to offer or sell any financial instruments. Nor shall any such financial instruments be offered or sold to any person in any jurisdiction in which such activity or sale would be unlawful under the securities laws of such jurisdiction. Decisions based on the information contained in this product are at Your sole responsibility. By using this product, you agree to indemnify and hold XCritical, its officers, directors, employees, affiliates and agents harmless against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from Your use of this Product as defined in paragraph 1 of this Agreement, in violation of the terms of the Agreement and/or Additional Terms and Conditions or from any decision made by You, based on such information.

4.3. No Liability. The Product is not sold but provided free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT XCritical, ITS AFFILIATES, AND EMPLOYEES WILL HAVE NO LIABILITY FOR ANY POSSIBLE CONSEQUENCES ARSING OUT OF YOUR USE OF XCritical’S SOFTWARE, AS SET FORTH BELOW. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH XCritical’S SOFTWARE IS TO IMMEDIATELY UNINSTALL AND DISCONTINUE ITS USE.

4.4. Limitation of Liability. IN NO EVENT SHALL XCritical, ITS AFFILIATES, AND EMPLOYEES BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:

4.4.1. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OR CORRUPTION OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT AND XCritical’S SOFTWARE;

4.4.2. ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT), ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT AND XCritical’S SOFTWARE;

4.4.3. ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH:

(I) ANY DISRUPTIONS OR DELAY IN COMMUNICATION WHEN USING THE PRODUCT AND XCritical’S SOFTWARE;

(II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY XCritical FOR ANY REASON;

(III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE PRODUCT AND THE XCritical’S SOFTWARE TO YOU.

This clause survives termination of this Agreement.

4.5. THE LIMITATIONS ON XCritical’S LIABILITY AS SPECIFIED IN PARAGRAPH 4.4 ABOVE SHALL APPLY WHETHER OR NOT SUCH LOSSES OR DAMAGES WERE FORSEABLE. This clause survives termination of this Agreement.

4.6. TO THE EXTEND NOT PROHIBITED BY LAW, IN NO EVENT SHALL XCritical BE LIABLE FOR PERSONAL INJURY, DEATH, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE).

4.7. Limitations on Jurisdiction. Some jurisdictions do not allow some of the exclusions or limitations as set forth above, so the above exclusions or limitations may not apply to You. In such cases the liability shall be limited to the maximum extent permitted by the applicable law. This clause survives termination of this Agreement.


5. MISCELLANEOUS

5.1. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement that governs the relations between You and XCritical with respect to the Product and the XCritical’s Software and will supersede and replace all prior understandings and agreements governing such relations, unless they were prepared as a separate document and executed in writing. Nothing in this clause shall exclude or restrict the liability arising out of fraud or fraudulent misrepresentation.

5.2. Partial Invalidity. If any provision under this Agreement, or any part of a provision, is found by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, and the provision (or part thereof) in question is not of a fundamental nature to the Agreement as a whole, the legality, validity or enforceability of the remainder of the Agreement (including the remainder of the term which contains the relevant provision) shall not be affected.

5.3. No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by applicable law shall not constitute a waiver of that right, power or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

5.4. Applicable Law and Competent Court. This agreement shall be governed by, and construed in accordance with, the law of the Republic of Cyprus. Any legal action or proceeding arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of the Republic of Cyprus and specifically, to the extent permitted by law, the District Court of Limassol.

5.5. Language. The original English version of the Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version of the Agreement and any other language version, the English language version shall prevail.

5.6. Survival. The terms of clause 2.3 and 2.5 as well as any other provisions of this Agreement which are expressed to survive or operate in the event of termination, shall survive termination of this Agreement for whatever reason.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND YOUR RIGHTS AND OBLIGATIONS, AS WELL AS THE TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE "NEXT" or "ACCEPT" BUTTON AND(OR) CONTINUING TO INSTALL THE SOFTWARE OR USING THE XCritical’S SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS DOCUMENT AND GRANT TO XCritical THE RIGHTS SET FORTH HEREIN.