eXapital Capital Advisors GmbH (hereinafter "eXapital"), affiliates of eXapital, and their authorized value-added partners offer their customers (hereinafter "Customers") virtual data rooms for the management, storage and exchange of data and (hereinafter the "Service"). The Service is used by remote access to the software platform of eXapital (hereinafter the "eXapital Platform") on servers of eXapital or affiliates and Partners of eXapital. Access to the eXapital Platform requires the use of the web browser.
The eXapital Terms and Conditions of Use and end user license agreement, hereinafter the "eXapital Terms and Conditions of Use," govern the use of the eXapital Platform, including the data rooms made available on the Platform, by Users.
If You have already entered into a separate agreement regarding the use of the eXapital Platform, including the data rooms, with eXapital or any affiliates of eXapital, the provisions of such agreement will take precedence over and be supplemented by the eXapital Terms and Conditions of Use.
IMPORTANT NOTICE: Please carefully read these Terms and Conditions of Use and make sure that You understand them before accepting these Terms and Conditions of Use. eXapital will allow You to use the eXapital Platform only if You accept all provisions of these Terms and Conditions of Use. By checking the box "I agree to the Terms & Conditions of Use”, registering as a user and using the EXapital Platform, or by otherwise expressing your agreement, You will accept these Terms and Conditions of Use. If You do not agree to these Terms and Conditions of Use, You will not be permitted to use the eXapital Platform.
You are authorized to use the web browser version and the eXapital Platform in accordance with the following provisions for purposes of accessing one or several data rooms (Section 2.1) and/or for purposes of accessing your user account (Section 2.2):
You may use of the web browser version and the eXapital Platform for purposes of accessing one or several data rooms within the scope of your authorization, provided that You have duly registered for the eXapital Platform and You have been granted authorization of use as defined below.
You have "authorization of use,"
Hereinafter the term "User" shall refer to any registered User (Customer, Authorized User).
In addition, You may use the eXapital Platform for purposes of accessing your user account (without access to data rooms) and other information accessible via the web browser, provided that You have duly registered for the eXapital Platform and your authorization has not been terminated or revoked in accordance with Section 3.2.
3.1.1 eXapital hereby licenses to You a non-exclusive, non-transferable right, revocable within the meaning of Section 3.1.4 and Section 3.2, to use the eXapital Platform, limited to Your user account and the respective data room (or parts thereof).
3.1.2 For purposes of accessing and using your user account (without access to the data room) and accessible information within the meaning of Section 2.2 You have the right to use the eXapital Platform only if and to the extent that You have authorization of use within the meaning of Section 3.1.3. and /or your authorization of use has not been revoked in accordance with Section 3.2.
3.1.3 For purposes of accessing and using the respective data room within the authorized scope You have the right to use the eXapital Platform only if and to the extent that You have authorization of use within the meaning of Section 2.1, your authorization of use has not terminated according cipher 3.1.4., and /or your authorization of use has not been revoked in accordance with Section 3.2.
3.1.4 For purposes of accessing a data room your authorization of use is limited to the term of the contract for use of the data room and will expire at the latest when the data room is closed, if You are a Customer.
If You are not a Customer, your right to use the eXapital Platform is limited to the term of the authorization of use granted to You by a Customer or any (Customer-authorized) administrator of the data room. The Customer or administrator will determine the term and scope of your authorization to use the data room and may revoke or limit your authorization of use at any time. If You are not a Customer, your authorization of use will terminate at the latest when the data room is closed, when the contract for use of the data room between EXapital and the Customer terminates, or when the Customer's authorization of use terminates.3.2.1 eXapital shall have the right revoke your authorization of use and to limit or block access to one or several data rooms, or to the eXapital Platform as a whole, at any time, temporarily or permanently, if the User has violated these Terms and Conditions of Use or such a violation is suspected, or if eXapital blocks access to the Customer's data room as a whole due to maintenance work, force majeure or any payment default of the Customer, or due to termination of the contract with the Customer.
3.2.2 Users who are not also Customers have no claims against eXapital for access to or use of the eXapital Platform. eXapital may limit or block access by such users without prior notice and for any or no reason. eXapital makes no warranty to such Users that use of the eXapital Platform will be free from malfunctions or errors.
4.1 All contents accessed in a data room are the property of the owner of such contents and may be protected by applicable copyrights and other rights. When using the data room, the User shall, in particular, infringe no copyrights or other intellectual property rights, or business or trade secrets of third parties (see Section 5.3 (4)). eXapital shall have no obligation to review contents for any of the aforementioned rights, including, without limitation, copyrights.
4.2 These Terms and Conditions of Use shall not be construed as granting the User any rights to such contents. Rights to contents uploaded to a data room shall be held as agreed between the User and the Customer. The User and the Customer shall also agree on duties of confidentiality.
4.3 As between eXapital and the User, the User is solely responsible for all data and contents made available by the User on the eXapital Platform. eXapital will not review contents for accuracy, completeness or lawfulness. eXapital only takes note of data if and to the extent necessary for performance of the contract with the Customer.
4.4 The User hereby licenses to eXapital for the term of the contract all rights to protected contents uploaded by the User, to the extent necessary for proper operation of the Platform, including, without limitation, the right to make copies of the contents or any parts thereof for purposes of providing the Service, for purposes of transmitting such contents via the Internet or for purposes of backing up data, and the right to archive such data to achieve the purpose of the contract, and the right to make such data available to any other Authorized Users to the extent determined by the Customer or administrator. This also includes the right to make uploaded contents available to third parties as instructed by the Customer or administrator, to transfer such contents to data carriers and to make such data available to the Customer or any third parties designated by the Customer, and the right to delete such data after termination of the contract. No other rights are licensed hereunder.
4.5 The User hereby licenses to eXapital the irrevocable right to review all files, information and contents made available to third parties on the eXapital Platform, including texts, software, photographs, videos, graphics, music and sound, for any violations of the User's obligations under these Terms and Conditions of Use, provided however that eXapital shall have no obligation to do so. If eXapital should determine that one or several violations of these Terms and Conditions of Use have occurred, eXapital shall have the right to block the contents, access to the data room or the eXapital Platform as a whole, and, if the user is also a Customer, to terminate the contract for good cause.
5.1 The User shall use the data room exclusively for the purpose specified by eXapital, within the agreed scope of the license and for the agreed term of the license.
5.2 The User hereby warrants that his/her use of the data room and the eXapital Platform, including the uploading and making available of data, shall violate no applicable laws. Applicable laws within the meaning of this section 5 shall mean any laws applicable to the User.
5.3 The User hereby agrees, in particular, as follows:
(1) not to use the data room or the eXapital Platform to procure or disseminate any documents which may directly, by transfer to third parties, or in any other manner infringe the rights of any third parties or damage the reputation of any third parties;
(2) not to store any infringing, unlawful or inappropriate contents in the data room or on the eXapital Platform and not to use eXapital to distribute such contents; not to upload, download, transmit, transfer, store or otherwise make accessible any contents that are unlawful and/or inflammatory, threatening, dishonoring, libelous, defamatory, harassing, violent, obscene, vulgar, hateful, racist or ethnically inappropriate, or any contents that violate the privacy rights of any third parties or are otherwise objectionable or run counter to the purpose of the offered services; to comply with all applicable laws for the protection of minors and, in particular, not to store and/or make accessible any pornographic writings or images; and not to store and/or make accessible any propaganda materials of unconstitutional associations;
(3) not to use the eXapital Platform and the data room in a manner that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations (including, without limitation, where we cannot verify your identity or other required information about your business) applicable to you or eXapital;
(4) to use the Service without violating any copyrights or other intellectual property rights and without making accessible any business or trade secrets to any unauthorized third parties; in particular, not to use the eXapital Platform to store or make accessible any copyright protected contents unless the User holds the necessary rights to do so (including, without limitation, copyright protected musical works and/or software of third parties);
(5) to follow generally accepted principles of data security and, in particular, to ensure that the User's systems, contents, scripts or programs are designed so that they cannot pose any risk to the operation of the eXapital Platform;
(6) not to run any applications that may result in impairment and/or modification of the eXapital Platform (including, without limitation, any denial of service attacks), and not to engage in any actions by which the system software on which the Platform is based may be downloaded, copied, transferred to third parties, modified, publicly presented or otherwise used for any purposes other than those contemplated by the contract, and not to access the system software without authorization.
(7) In particular, the User is strictly prohibited from uploading, sending, transferring, storing or otherwise making accessible any contents that may contain viruses, worms, Trojan horses or any other defective or damaging data, or any contents containing any other system codes, files or other programs that are designed to modify, interfere with or restrict the flawless operation of the eXapital services (or any parts thereof) or of any other data processing software or hardware. The User further is prohibited from obtaining any information about the system without authorization and from making any attempts to disrupt or prevent use of the services as a whole, or of any servers or networks associated therewith (including any attempt to gain access to the services in any automated manner, e.g., by scripts or web crawlers) or to subvert any guidelines, requirements or provisions applicable to networks related to the services (including any attempt to gain unauthorized access thereto or to any data or data transfers included therein, or to use or monitor the same without authorization, or to acquire the passwords of other Users);
(8) to make no attempt to gain unauthorized access to the data rooms of any third parties or to any data uploaded to such data rooms (including, without limitation, any attempt to access the server system of eXapital without authorization);
(9) to protect his/her access from unauthorized use by any third parties, in particular by keeping the User's password allowing access to the eXapital Platform strictly confidential and not disclosing the password to any third parties, and to take appropriate, reasonable measures to prevent the User's password from being discovered by any third parties. The User further shall promptly change the password as soon as the User suspects that access data have been discovered by any unauthorized third parties. In such case eXapital shall be promptly notified. The User is liable for any unauthorized use of data on the eXapital Platform made possible by the User's conduct.
5.4 The User shall install and update antivirus software on his/her own computer. The User shall keep a set of the data that have been uploaded to the data room, in copyable, machine- legible form.
5.5 Indemnification: To the extent permitted by law, You will defend eXapital against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of eXapital' actions); or (b) violates applicable law or these Terms. eXapital will reasonably notify you of any such claim or demand that is subject to your indemnification obligation. In the event of any breach, eXapital shall have the right to block access to the data room (or any parts thereof) and to contents, and to terminate the contract with the Customer for good cause.
6.1 eXapital is subject to unlimited liability in accordance with applicable law for the lack of any warranted qualities and for any fraudulently concealed defects. The same shall apply to liability for harm to life, limb or health caused by any intentional or negligent breach by eXapital or any of eXapital' legal representatives or agents.
6.2 In all other cases eXapital' liability, whatever the legal grounds, shall be limited to cases involving willfulness or gross negligence, including willfulness or gross negligence on the part of eXapital' legal representatives or agents, unless an obligation is breached the proper performance of which is essential to the performance of the contract as a whole and on the performance of which the Customer may reasonably rely and did rely (cardinal obligation).
6.3 If a cardinal obligation is breached, eXapital shall also be liable for ordinary negligence. However, eXapital' liability for any breach of a material obligation shall be limited to reasonably foreseeable damages.
6.4 Moreover, in the case of section 6.3 indirect damages and consequential damages may be recovered only if and to the extent that such damages are reasonably foreseeable assuming that the services are used as intended.
6.5 In case of liability for ordinary negligence eXapital ́s liability for property damages and resulting further financial losses, regardless of the legal reason, is limited to an amount of 5.000.000,00 EUR per loss event – according to the current amount covered by our liability insurance. This shall also apply in case of breach of a cardinal obligation.
6.6 eXapital's liability regardless of fault for existing defects at the time of concluding the Contract pursuant to § 536 a (1) of the German Civil Code (BGB) is expressly excluded in case of Service.
6.7 Any liability for lost data shall be limited to the amount of data restoration costs that typically would have been occurred if backup copies had been made at regular intervals as appropriate given the risk involved.
6.8 eXapital makes no warranty for the nature, currency, accuracy or completeness of any contents or documents that are made available to eXapital by the Customer or any authorities/third -party archives for uploading to the data room or for document digitisation and/or structuring, or that are uploaded in the data room by the Customer or authorized User.
6.9 EXapital shall not be liable for any rights of third parties that may be affected by the uploading of documents or contents to the data room by the Customer or Users. The Customer agrees to hold harmless and indemnify eXapital from and against any and all third- party claims (including reasonable costs of legal defense and court costs), whatever their legal grounds, that are based on unlawful actions by the Customer (e.g., copyright or trademark infringements, violations of data protection laws) or that are based on incorrect, incomplete or outdated data or information made available by the Customer on the Platform.
6.10 Any claims for compensatory damages or reliance damages, whatever the legal grounds, shall be subject to a limitation period of one year from the date the statutory limitation period begins to run. The foregoing shall not apply if applicable law provides for a longer limitation period, e.g., for fraudulent concealment of a defect, for harm to life, limb or health, and/or in cases where damages are caused intentionally or grossly negligently. In such cases the statutory limitation period shall apply.
6.11 Under this agreement neither party shall be liable to the other party for non-performance of its obligations during times when such performance is delayed due to circumstances that are beyond the reasonable control of such party, including, without limitation, fire, flood or strike (hereinafter "force majeure event"), provided that the party whose performance is delayed shall provide the other party with prompt written notice of the force majeure event. Non-performance by the party whose performance is delayed shall be excused for the duration of the force majeure event. If a force majeure event lasts for more than 30 days, the parties shall negotiate a modification to the contract terms. If no agreement is reached within 30 days, either party may terminate the contract with immediate effect.
6.12 The foregoing limitations of liability shall not apply in cases where liability attaches by operation of law, e.g., based on the German Product Liability Act (Produkthaftungsgesetz) (§14 of the Product Liability Act).
6.13 The foregoing exclusions and limitations of liability shall to the same extent also apply to our officers and directors, legal representatives, employees and agents.
Last revised: May 2024
eXapital Capital Advisors GmbH
Ballindamm 27
DE-20095 Hamburg, Germany
Managing Directors:
Hubertus Bäumer
Dr. Karsten Lieser
