Terms of Use for Xara Cloud

1. Scope of Application

1.1 Xara GmbH (hereinafter referred to as “we” or “Xara”) provides under the name “Xara Cloud” various online-based services comprising software and content (altogether the “Service(s)”) on the basis of these general terms and conditions (the “Terms and Conditions”).

1.2 The following Terms and Conditions contain the basic rules for use of the Services by customers of Xara (“you” or “User”) and apply for all future legal transactions and legal business dealings between the User and Xara. Terms and Conditions from the User which deviate or expand on these Terms and Conditions – even when known – shall only come into force when they have been explicitly confirmed in writing by Xara.

1.3 If you subscribe to a paying plan and your subscription includes Xara Designer Pro+, Xara Photo & Graphic Designer+ or Xara Web Designer+ then additional terms are included in the End User License Agreement for those products which you can view at https://www.xara.com/eula/.

2. Registration

2.1 Users are required to register in order to use the Service. This registration creates a legal service agreement between you and Xara. Registration is not permitted for persons under the legal age of majority or other natural persons with restricted legal competence.

2.2 By “agreeing to” these Terms and Conditions, you are indicating and warranting that you are authorized to do so. If you open a Xara account for a business, an organization, or other institution and agree to these terms, then (a) “you” includes you and that legal entity. And (b) you warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms & Conditions.

2.3 Any legal entity (as described in 2.2) remains obligated to comply with these Terms & Conditions, even if you are an ‘Administrator’ in a multi-user account such as ‘Team’ or similar, and you transfer administration rights to another user, or if your administration rights or account is cancelled.

2.4 As far as you are required to enter User data during the registration process, you are obliged to provide truthful and complete data, especially with respect to address data, banking information and email address (as applicable). The use of pseudonyms or aliases is not permitted. In the case of a change to the recorded data after completion of the registration, you shall update the information without delay.

2.5 By signing up to the Service, you agree to the terms of use and ensure that the data provided is truthful and that you are not prohibited from using the service according to the terms set out in section 2.1. There is no inherent right to registration. Xara reserves the right to refuse the User’s registration for any or for no reason. In this context, we refer in particular to the provisions under item 4, below.

4. Use of the Services

4.1 You agree and warrant that you will not engage in any of the following prohibited activities without the prior written consent of an authorized representative of Xara:
(i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to access or extract the source code of the Service or any part thereof;
(ii) access all or any part of the Service, including the software and content, in order to build a competing product or service;
(iii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Service available to any third party except the licensed Users;
(iv) distribute, share or copy parts of our Service on any medium;
(v) access the Service, including software and content, via any means other than that offered or authorized by Xara;
(vi) circumvent any measures we use to prevent or restrict access to the Service; this includes all features that prevent or restrict the use or copying of content, or enforce restrictions on the use of the Service;
(vii) use Xara trademarks, or variants or misspellings of Xara trademarks, as a domain name or part of a domain name, as a meta tag or keyword, or exploit the Xara trademarks in any other way;
(viii) use any word or mark that is similar to, and likely to be confused with, the trademarks of Xara;
(ix) to wholly or partially mimic, copy or use the look and feel of the Service (including, but not limited to, logos, headings, buttons and custom graphics, menu structures, dialogs and scripts);
(x) use Xara Content to link to the Xara website; or
(xi) Link to our Service or content, other than User Content, using hotlinks or via iframes or similar.

4.2 Xara accounts are designed for use by a single user. You understand that sharing and multiple use of a single user account is prohibited and each user must be registered.

4.3 You are obligated to maintain your systems and programs in a manner which does not impede the security, integrity or availability of the systems used by Xara to provide the Services. Xara reserves the right to block Services when systems act or react in a manner that is not consistent with the standard operating behavior and thus pose a threat to the security, integrity or availability of the Xara systems.

4.4 If you breach your obligations as set out in Section 4, we shall be entitled to discontinue the Service in a manner that is technically necessary and with immediate effect in order to prevent any further breach of obligations. In addition, we shall be entitled to immediately discontinue the Services in the following cases:
► Where false information was entered during the registration process (section 2.2)
► Where you share your account with another user (section 4.2)
► Where the User has violated the Terms and Conditions
► Where login details have been lost or there is reason to believe that they are being misused by third parties
► In the case of chargebacks
► In the case of any other important reason, Xara is permitted to block the relevant Services or Content for the duration of the period of the violation or until the disagreement with the User or the third party has been resolved.
► Free services can be cancelled at any time for any reason and without a notification period.

4.5 In case of a breach of the obligations set out in section 4 or 5, you shall also be obligated to compensate Xara for any direct or indirect resulting damages. You exempt Xara from responsibility for any third party claims resulting from a breach of contract.

4.6 Xara reserves the right to change or discontinue the Service in whole or in part either temporarily or permanently. If necessary, Xara shall post notice on the website www.xara.com/terms-of-use and/or send an email notification to the email address connected to the User account to inform about any significant changes to the Service. You are therefore responsible for regularly checking the email account for the email address you entered during the registration process. You agree that we shall not be liable to you nor to any third parties for changes or discontinuation of the Service. If you have paid in advance to use the Service and we terminate the Service or significantly reduce its functionality, we shall be obligated to reimburse the paid fees proportionally.

5. Content

5.1 Definition of “User Content”
Using the Xara Service you can upload, import or copy materials (such as text, brand assets, photographs, fonts, illustrations, designs and other similar content) to the Service and create something new with the Service. All such uploaded, imported or copied materials that a User edits, transmits, publishes, displays, prints or otherwise uses are available within the Service without remuneration (“User Content”). You retain ownership of any of the previously listed, not conclusively named, User Content. You understand that if you are using the Service on behalf of an organization then “you” will refer to that organization.

5.2 User Content License Grant
By creating and editing any content through the Service, you grant Xara the non-exclusive, transferable, sub-licensable and worldwide right to use this User Content for the purposes of fulfilling the contract (e.g. to upload and/or copy your content to our platform/our cloud services, to make display adjustments, to duplicate for backup and perform any other technical actions and/or uses required to perform our services, as appropriate and reasonable). This right ends upon expiration or termination of the User agreement (the ‘Term’) with the exception of such content you shared with other Users.

5.3 Our Property Rights / “Xara Content”
Except for the User Content as defined in Section 5.1 above, the Service (including any materials contained or transmitted therein, including without limitation templates, icons, charts and diagrams, text, images, software, illustrations, graphics, logos, patents, trademarks, copyrights, and Service marks, photos, audio, video, music, etc.) and all related intellectual property rights (the “Xara Content”), is owned solely by Xara and its licensors.

Unless expressly stated otherwise in these Terms of Use, it shall be understood that nothing in this Agreement constitutes a license to or under any intellectual property rights referred to in this provision. You expressly agree not to sell, license, rent, modify, distribute, copy, reproduce / adapt, transmit, publicly display, publicly perform, publish, or distribute any intellectual property rights to any “Xara Content”. Use of any “Xara Content” for any purpose not expressly permitted by this Agreement is strictly prohibited.

5.4 User-Rights for Software and Xara Content
Xara grants you the non-exclusive, non-transferable, non-sublicensable, worldwide, revocable and limited right to use the Service and the software and Xara Content included with the Service during the Term and to create your own material incorporating User Content and Xara Content. The right to use the Service and Xara Content shall expire at the end of the Term.

5.5 You guarantee that anything you store or publish via Xara Cloud is not legally forbidden and does not infringe on the rights of third parties (such as intellectual property rights and privacy rights). In particular you agree that you will not upload, store, share or publish any content which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Xara or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval.

5.6 You also guarantee that you will ensure that you comply with any font license, including the following cases a) When publishing documents with fonts embedded (websites, PDFs etc) you need to ensure the font license permits embedding b) You should not upload a font to your Custom Fonts folder unless you have a license for the font or you know that the font’s license permits you to use the font. c) When editing imported documents (in PDF, XAR or other formats) that contain embedded fonts, you also need to ensure the font license permits editing, and not only viewing/printing. In all cases you should not continue to use a font unless you have determined that you have a license that permits your usage. If you continue without the appropriate font license liability rests solely with you. If in doubt please contact your font vendor.

6. Third Party Services

6.1 Some of the free offers may be financed by advertising among other things. In the context of using these services the User accepts the addition of advertising banners, text announcements and other advertising forms of third parties.

6.2 The Service may also include or provide access to certain third party services such as image, font and template collections etc. (the “Third Party Services”). You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, Xara merely acts as an intermediary platform between you and such Third Party Services and is not in any way responsible or liable with respect thereto. By offering Third Party Services only as an intermediary platform, you understand that by using our services, you also agree to the terms and conditions of our Third Party Service providers. Currently or within the near future we offer the stock photo and illustration services of Pixabay and Unsplash, and Flaticon icons and stickers of Freepik. The terms of use of Third Party Service providers can be found on their respective websites. Please read their regulations carefully. By registering for our service, you also accept the terms of use of the Third Party Service providers. Hereby you are telling us, that you have read and understood the terms of use of the Third Party Service providers and you agree to them as well as you agree on their privacy policy regulations.

6.3 Any and all use of Third Party Services shall be done solely at your own risk and responsibility, and may be subject to specific legal and financial terms.

6.4 While we hope to avoid such instances, Xara may, at any time and at its sole discretion, suspend, disable access to or remove from the Services any Third Party Services without any liability to you.

6.5 The photos embedded in the templates provided as part of the Service can only be used as part of a project created with the Service using those templates, they cannot be extracted and used stand alone or for any other purpose. If you wish to use them in projects separately from the templates it may be possible, contact Xara for details of the license and licensor.

The stock photos embedded in the templates or otherwise provided as part of the Service cannot a) be used in a way that shows identifiable persons in a disgraceful light, or to imply endorsement of the products and services by depicted persons, brands or organisations, or b) be included in a stock photo library or similar or c) sold without first updating, modifying or otherwise incorporating new creative elements into the photos (ie you cannot sell unaltered copies of the photos).

6.6 The Flaticon icons and stickers provided via the Service cannot be used in any way which violates Flaticon Terms of Use, including, without limitation, any print-on-demand services or any other service in which the Flaticon content is directed or may be directed to be used in printed or electronic items (e.g. t-shirts, cups, postcards, birthday or greeting cards, invitations, calendars, web models or electronic devices, apps, NFTs, videogames, advertising spots, audiovisual animations) aimed to be resold, in which the content in the Flaticon content is the main element (because of size, relevance or any other cause, in case of doubt about whether the content is main element, it shall be deemed that the content is main element).

6.7 Arial, Times New Roman and Courier New fonts are not supported on Android devices. When web documents are created and published using these fonts, they will be automatically substituted on such devices by Google Fonts (Arimo, Tinos and Cousine). If you do not wish to use these Google fonts then do not use Arial, Times New Roman and Courier New in your web documents.

7. Term, Cancellation and Effect of Cancellation

7.1 The Term depends on the respective offer selected by the User.

7.2. All fee-based services are automatically renewed at the end of the Term (the “Renewal Date”) for additional periods equal to one (1) year or the preceding Term, whichever is shorter. You may at any time cancel the automatic renewal with effect from the next Renewal Date by providing at least one week’s prior notice. The fee based Service and content will remain available until the end of the current Term (unless cancelled for cause according to the terms of Clause 4.4) and there will be no refunds relating to the current Term. If a fee-based service is not renewed you will revert to the free service. Free services can be cancelled at any time for any reason and without a notification period.

7.3 The Service can only be cancelled via the Billing & Plans page of your Xara account. In My Products & Plans, select View Details & Manage, click the plan you wish to cancel and select Cancel Subscription (further guidance desktop and for Xara Cloud).

7.4 The right to terminate the contract for cause shall remain unaffected. Xara shall be additionally entitled to termination without notice if the User is in arrears with payments amounting to at least two monthly payments.

7.5 In case of cancellation of any fee-based service you will no longer be able to use the premium features and content of that service. In the case of cancellation of the free service you will no longer be able to use the Service; in particular, you will not be able to edit your documents with the Service and your shared documents will not remain shared.

7.6 Following the termination or cancellation of your subscription to the Service and/or your free account, we reserve the right to delete your data and documents stored by Xara (which for clarification does not include documents in your own cloud drives).

8. Prices and Payment for Fee-based Services

8.1 Remuneration for fee-based Services shall be payable in advance for the term subscribed to, which will not exceed 12 months.

8.2 Xara is entitled at any time to increase prices after a period of at least four weeks following notice. The change in price shall take effect upon the next Renewal Date unless you object to the modified price within four weeks following notification. The notification by Xara is a proper cancellation as outlined in these terms of use in the case of an objection by the User. In its notification Xara will indicate the options of raising objections and cancelling the contract, as well as the terms and legal repercussions of exercising these options, especially with regard to objections which were not raised.

8.3 If you are in arrears with payments for a fee-based service, Xara shall be entitled to block your access to the Service and/or reduce the Service to the level of a free offer in addition to the right of cancellation of the Service according to section 7.

9. Modification of Terms

Xara reserves the right to modify or supplement these terms of use with a reasonable notification period. The notice shall be provided by email to the email address connected to your user account and on the Xara internet site at www.xara.com/terms-of-use. The change shall be considered accepted by the User if you do not raise objections or cancel the contract within one month of receiving the notice. The notification by Xara is a proper cancellation as outlined in these terms of use in the case of an objection by the User. In its notification Xara will indicate the options of raising objections and cancelling the contract, as well as the terms and legal repercussions of exercising these options, especially with regard to objections which were not raised.

10. Disclaimer of Warranties

10.1 Xara provides the Services on an “As Is” basis, without any warranties of any kind, including any implied warranties or conditions of merchantability, fitness for a particular purpose etc. – all to the fullest extent permitted by law. We specifically do not represent or warrant that the Services (or any part, feature or Content thereof) are complete, accurate, of any certain quality, suitable for or compatible with any of your contemplated activities, devices, operating systems, browsers, software or tools. Besides, we do not endorse any entity, product or service (including any Third Party Services) mentioned on or made available via the Services – so please be sure to verify those before using them.

10.2 Notwithstanding anything to the contrary in the foregoing, in no circumstances may Xara be considered as a “publisher” of any user content and assumes no liability for any user content uploaded, shared, published and/or made available by any user through the Service, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, sharing, accessing and/or relying on any user content made available via the Service.

10.3 You acknowledge that there are risks in using the Service and/or any Third Party Services, and that we cannot and do not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions to the fullest extent permitted by law.

10.4 Please note that certain features of the Service may be offered in a BETA version, and undergoing BETA testing. You understand and agree that such Services may still contain software bugs, suffer disruptions and not operate as intended or designated.

10.5 Xara does not warrant a permanent availability of the Service. In particular, the Service may temporarily not be available over the Internet due to technical or other problems not under the sphere of influence of Xara (force majeure, third party defaults, etc.). Besides, Xara may restrict access to the Service if this is required in order to maintain network security, network integrity, prevent server network problems, or safeguard software or stored data.

11. Liability

11.1 Xara shall be liable to the User for damages according to the legal definition insofar as these damages were caused by deliberate or gross negligence, were the result of failure to provide the guaranteed properties of the Service, were related to a culpable breach of the contractual obligations (see section 11.2), were the result of culpable injury to health, body or life, or in the case of liability according to product liability laws.

11.2 Principal contractual obligations (cardinal duties) are those contractual obligations whose correct performance is essential to making the contract at all possible, whose adherence can regularly be relied upon by the contractual partners and whose breach impedes the injured party’s ability to fulfil the purpose of the contract. For damages that occur as a result of a breach of cardinal duties, liability shall be limited to the typical damages that Xara could reasonably foresee upon conclusion of the contract unless the breach resulted from deliberate or gross negligence.

11.3 Xara shall not be liable for damage which can be controlled by you or you could have prevented by taking measures which can be reasonably expected of you, for example taking adequate backups of your data. Due to the nature of the Service, Xara is in particular not liable for any data loss. These limits shall not apply for damages caused by deliberate or gross negligence of cardinal duties resulting in culpable injury to health, body or life, or for those with liability according to product liability laws.

11.4 This Section 11 is not intended to change the burden of proof to the disadvantage of the User.

12. Data Protection

12.1 Personal data shall be collected, processed and used by Xara during the term of the contract without any further express user agreement, among other things for the purpose of fulfilling the contract, including invoicing. Data is collected, used and processed electronically and in accordance with statutory data protection regulations. Further information can be found in our Privacy Policy.

12.2 By using our Service you consent to the collection, use and disclosure of your personal data. We refer you to our Privacy Policy. By submitting your e-mail address to us, you agree that we may use your e-mail address to send you communications regarding our services. These messages also include legally prescribed messages instead of communication by post. You also agree that we may use your email address to send you other communications (e.g., changes in the features of the Service and special offers). If you do not wish to receive such e-mails, you may opt-out as detailed in our Privacy Policy at https://www.xara.com/privacy/

12.3 Xara is entitled to communicate the User’s invoicing data to other service providers and third parties providing this is required for the calculation of payment and the invoicing of the User.

13. General

13.1 The user may not assign or delegate any of its rights or obligations hereunder – except for the transfer of administrative rights via multi-user accounts such as ‘Team’ as described in 2.3 above – whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Any purported assignment in violation of this section is void. Xara is free to assign or delegate its rights or obligations hereunder at any time also without the User’s approval.

13.2 The User can only offset against Xara’s claims with unopposed or legally arbitrated counterclaims.

13.3 The legal relationship of the User and Xara is governed by German law. If the contractual partner is a merchant, a corporate body under public law or under fund assets governed by public law, the headquarters of Xara shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract relationship. Xara also has the right to bring proceedings against the User at its general court of jurisdiction.