Xayn Search App
1. Scope of application
2. Use of services
2.1 A prerequisite for the use of the Services is that the user of the App (the "User") has a device which complies with the current state of the art and which complies with the relevant specifications stated as minimum requirement in the respective app store. Moreover, the use of the Services requires an internet connection of the User that provides a sufficient data transmission rate as well as sufficient disk space on the Us-er's device.
2.2 Xayn reserves the right to adjust the Services to the market conditions and to improve, expand, change and delete Services in whole or in part on an ongoing basis. In order to use the Services, it is therefore particularly necessary to keep the device which is used to access the App up-to-date.
3. Scope of services
3.1 The App provides the technical infrastructure to enable the User to search the inter-net by submitting "Search Requests" in the App which the App will pass-on to one or more third-party web crawlers ("Crawlers") routed by servers from Xayn which ensure that the Crawlers do not get the Users’ IP address or other identifiable information apart from the Search Request. Xayn does not have any control over the Crawlers or their availability. The User is aware that the Search Requests (e.g., “weather in Berlin tomorrow”) may be used by the operator of the Crawlers for whatever own purposes.
3.2 In the settings of the App, the User may activate the use of machine learning models ("Models"). Such Models may modify, improve and personalize the search results based on the knowledge they obtain from previous Search Requests submitted by the User and previous search results provided by the Crawlers. In order to further improve the quality of the Models, the Models are shared with Xayn in an encrypted way, aggregated with Models from other users of other installations of the app on other devices, and then again transmitted to the User's App and to the other users' app installations, where they are further used as outlined in this section. By activating the use of machine learning models in the settings of the App, the User agrees with the creation and usage of Models as described herein.
4. Provision of the app; license; liability; maintenance and service
4.1 In case the App is provided for free, including for testing and evaluation purposes, the following applies:
4.1.1. The User's right to use the App and the Services is limited to the term of this agreement and is revocable, non-exclusive, not sub-licensable and not transferable.
4.1.2. The Services are provided free of charge and Xayn does not give any warranty of any kind.
4.1.3. Xayn's liability is limited to intent and gross negligence.
4.1.4. In case the App is provided for testing and evaluation purposes, the User acknowledges that the App might not function as expected.
4.2 In case the App is provided for a fee, the following applies:
4.2.1. The User's right to use the App and the Services is limited to the term of the agreement and is non-exclusive, not sub-licensable and not transferable.
4.2.2. The Services are provided against a fee as indicated in the respective app store.
4.2.3. In case of bugs, Xayn is entitled to provide an updated version in the respective app store and User is obliged to install such updated version. In case of minor bug, the warranty is excluded.
4.2.4. In any case of simple negligence each party is liable for the breach of a contractual obligation which gives distinction to the agreement and on which the other party may rely on (essential obligation) and limited to the typical and foreseeable damage only; this exception does not apply to culpable damage to life, body or health nor in cases of mandatory liability including without limitation liability resulting from the German Product Liability Act or the EU General Data Protection Regulation. In addition, strict liability for defects that already existed at the time of conclusion of the agreement is excluded.
4.3 User acknowledges that all further developments provided by Xayn solely belong to Xayn, even if they go back to feature requests or bug reports of Users.
4.4 User acknowledges that User is solely responsible for the Search Requests submitted and for the use of the Services in general.
4.5 Xayn will facilitate the use of the App within the framework of the current state of the art and strives to provide maximum possible availability. Xayn reserves the right to restrict access to the App or the possibility of its use temporarily in whole or in part if this is necessary due to capacity limits or the security or integrity of the servers or to carry out technical measures serving the purpose of providing the Services properly or with improvements (e.g. for maintenance work). User acknowledges that in case of any non-availabilities of the Crawlers – again: Xayn is not responsible for the services of the Crawlers –, the App might not be functioning.
4.6 Xayn has no obligation to provide updates or upgrades for the App or to adapt the App in any other way to possible changes to hardware and/or software (in particular, operating systems).
5. Duties and liability of the users
It is prohibited to misuse the Services. Misuse of the Services includes, in particular, if the User (i) executes automatic search requests through the App, (ii) takes
measures which aim to circumvent technical protection measures, (iii) enables automatic data readouts, (iv) circulates or enables the circulation of viruses, worms, trojans, brute force attacks, spam or other malicious actions, (v) runs attacks on the Models, for example by trying to identify data from natural persons in the Models, or (vi) copy or otherwise uses the Models for any other purposes than within the App. Misuse of the Services results in immediate exclusion from use and in the institution of civil and criminal proceedings.
In the case of infringement of third-party rights for which the User is responsible, the User will be directly liable towards these third parties. In the event of justified claims of third parties against Xayn due to such an infringement, the User has the obligation to indemnify Xayn in full unless the User proves that he/she is not responsible for the breach of duty that has caused the damage or loss.
7.2 Xayn reserves the right to change the Services or to offer deviating services, unless this is unreasonable for the User. In particular, Xayn may adapt the scope of Services to the relevant state of the art or extend it.
If not otherwise agreed, for example in the respective app store, the agreement is concluded for an undefined period of time and may be terminated by either party without notice period at any time in text form or by deactivating the Services.
9. Data protection
10. Final provisions
10.1 Xayn may make use of third parties, in particular companies affiliated with it, for the purpose of performing the agreement and exercising its rights. Xayn has the right to transfer its rights and duties under this agreement as a whole to affiliated companies or other third parties.
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