Article 1. Definitions

 

Service:	the making available of the Software, remote or via the hosted service, or by offering the Software as download, including Support;
Error:	substantially not meeting the functional or technical specifications of the Software as notified by XSO in writing. An error is only regarded as such if the Customer can prove this and if this can be reproduced. The Customer must immediately report errors to XSO;
User terms and conditions:	these user terms and conditions;
IP rights:	All intellectual property rights and related rights, such as copyright, trade mark right, patent right, model right, trade name right, database right and affiliated rights, including right on knowhow and performances on par with such rights;
Customer:	individual who or company which entered into an Agreement with XSO for the Service;
Agreement:	each agreement concluded by XSO with the Customer;
Support:	'off-site' support; consisting of support by telephone, email or remote support, the making available of updates and - if agreed- the arranging of back-ups;
Parties:	XSO and the Customer jointly;
Software:	the software developed by XSO which the Customer can use to keep time registration, including updates. There are various versions of the Software, the Software in these User Terms and Conditions only refers to the version selected by the Customer and for which the Customer has entered into an Agreement with XSO.
Software of Third Parties:	software that has been developed by third parties and is operated with the Software, including open source software;
XSO:	the private limited company Xbase Software Ontwikkeling B.V., also trading under the name XSO, having its registered office at (9036 ML) Menaldum, de Lytsedyk 16, registered in the Chamber of Commerce under number 01070477 and operating on website  www.timewriter.nl;

                                     

Article 2. Applicability and the Agreement

 

2.1               These User Terms and Conditions apply to all legal acts of XSO, all legal relations between the Parties and all offers and Agreements between the Parties.

2.2               Deviations and additions of these User Terms and Conditions are only valid if these have been concluded between the Parties in writing.

2.3               The applicability of purchase or other terms and conditions of the Customer are explicitly rejected.

2.4               If any provision of these User Terms and Conditions are nullified or removed, or become fully or partially invalid for any other reason, the other provisions of the User Terms and Conditions remain applicable in full. XSO will replace the invalid provision by a provision that is valid and is similar to the invalid provision in light of the content and the nature of these User Terms and Conditions.

2.5               All offers and other communications by XSO are free of obligation unless otherwise is stated.

2.6               The Customer guarantees the correctness and completeness of the information provided by the Customer or on his behalf on which XSO bases its offer.

2.7               The Customer places an order by completing the order form on the website of XSO. XSO will send the Customer an email with an offer on the basis of the order form. The Agreement is concluded the moment that the Customer confirms the offer of XSO.

 

Article 3. The Software and user right

 

3.1               On the condition that the Customer has met his payment obligations, XSO will provide the Customer a non-exclusive, non-transferable licence that cannot be sub-licensed, to use the Software pursuant to that stated in the Agreement and these User Terms and Conditions.

3.2               The Customer can purchase the Software as Hosted service or download it and install it on its own server. If the Customer has chosen to download the Software the terms and conditions under A apply. If the Customer has chosen to use the Hosted service of the Software, the terms and conditions under B apply.

 

A: Own installation

3.3           XSO makes the Software and the user documentation available to the Customer, so that the Customer can download it.

3.4           The user right only applies to the object code of the Software and not to the source code of the Software. The source code of the Software is not made available to the Customer.

3.5           The Customer will install, set up, parameterise, tune the Software and adjust the used equipment and user environment if necessary. XSO is not obliged to perform a data conversion.

3.6           The Customer accepts the Software in the condition that it is in at the moment of delivery ('as is'), therefore with all visible and invisible Errors and failures, notwithstanding the obligations of XSO on the basis of the guarantee scheme of article 9.

3.7           The Customer is only permitted to use the Software in and for its own company or organisation and only for the intended use.

3.8           Except prescribed otherwise by force of law or on the basis of the Agreement or these User Terms and Conditions, the Customer cannot make public, copy, amend, decompile the Software or apply reverse engineering on the Software.

3.9           The Customer is not permitted to sell, lease, dispose of or grant limited rights to the Software or provide the Software to a third party in any way or for whatever reason. The Customer will also refrain from providing a third party - remote - access to the Software.

3.10         The Customer will immediately provide its full cooperation, if requested, to an audit performed by or on behalf of XSO for the adherence of the Customer to the agreed user limitations. To this end, the Customer will grant access to the buildings, systems and records of the Customer. XSO will ensure that the audit will affect the normal business operations of the Customer as little as possible. XSO will keep confidential any information it receives as a result of this audit. The costs for the audit are payable by XSO unless the audit brings to light irregularities. In that case the costs of the audit are payable by the Customer, notwithstanding any rights of XSO to make claims against the Customer.

3.11           Unless otherwise is agreed, XSO will not carry out maintenance to the Software.

3.12           The Software is solely responsible for making correct back-ups with regard to the Software.

 

B: Hosted service

3.13          XSO makes available the Software and the accompanying user documentation to the Customer remote, without the Customer receiving a physical carrier or a copy of the Software.

3.14          The user right only applies to the object code of the Software and not to the source code of the Software. The source code of the Software is not made available to the Customer.

3.15          The Customer accepts the Software in the condition that it is in at the moment of delivery ('as is'), therefore with all visible and invisible Errors and failures, notwithstanding the obligations of XSO on the basis of the guarantee scheme of article 9.

3.16          The Customer is only permitted to use the Software in and for its own company or organisation and only for the intended use.

3.17          Except prescribed otherwise by force of law or on the basis of the Agreement or these User Terms and Conditions, the Customer cannot make public, copy, amend, decompile the Software or apply reverse engineering on the Software.

3.18          The Customer is not permitted to sell, lease, dispose of or grant limited rights to the Software or the access to the Software or provide the Software to a third party in any way or for whatever reason. The Customer will also refrain from providing a third party - remote - access to the Software.

3.19           The Customer will immediately provide its full cooperation, if requested, to an audit performed by or on behalf of XSO for the adherence of the Customer to the agreed user limitations.

3.20           XSO will make a full back-up three times a day, i.e. 8 a.m., 12 a.m. and 6 p.m. of the customer details in its possession. XSO will treat the back-up with care and will always keep the 30 last made unique back-ups.

  3.21               XSO can continue the performance of the Service with the aid of a new or amended version of the Software. Unless otherwise has explicitly been agreed, XSO is not bound to maintain, amend or add specific qualities or functionalities for the Customer.

3.22            XSO can fully or partially shut down the Software temporarily and/or limit the use thereof if XSO deems it necessary, for example for preventative, corrective or adaptive maintenance. XSO will inform the Customer as soon as possible, but no later than five (5) working days before hand, of the (temporary) availability or limitation of the use of the Software.  If, in case of an emergency, the Software must be shut down, or its must be limited immediately, then XSO will inform the Customer thereof as soon as reasonably possible.

3.23            When performing the Service as hosted service, XSO will process any personal details for the Customer in accordance with the Data Protection Act. XSO will act in relation to the Customer as the processor within the meaning of the Data Protection Act. XSO will take suitable technical and organisational measures to safeguard these personal details against loss or any form of unlawful processing. These measures will guarantee a suitable level of safety, thereby taking into consideration the current technology available and the costs of realisation in respect of the risks involved with the processing and the nature of the data that is to be protected.

 

Article 4. IP rights

 

4.1               All IP rights of the Software made available to the Customer on the basis of the Agreement, the files, materials and documentation are solely owned by XSO or its licensor.

4.2               De Customer is not permitted to remove or amend any indication concerning the confidential nature or the IP rights from the software, files or materials.

4.3               XSO can implement technical facilities for the protection of the Software, files or materials, or have these implemented in respect of an agreed limitation in the content or the duration of the license. The Customer is not permitted to remove or circumvent such technical provision or to have them removed or circumvented.

4.4               The Customer is not permitted to amend or add to the Software, files or materials supplied by XSO or them have it amended or added to, nor is the Customer permitted to have third parties carry out maintenance or repairs to the Software, files or materials supplied by XSO.

 

Article 5. Software of Third Parties

 

5.1               The Software use of Software of Third Parties. The use of Software of Third Parties is subject to the (license) terms and conditions of those third parties replacing the deviation provisions in these User Terms and Conditions. The Customer accepts the user terms and conditions with regard to the relevant Software of Third Parties. The applicable (license) terms and conditions can be found [here].

5.2               If and insofar the terms and conditions in the relation are not considered to be applicable or are declared not applicable in the relation between the Customer and the supplier for whatever reason, then that stated in these User Terms and Conditions applies in full.

5.3               The Customer indemnifies XSO for all the damage and costs resulting from and/or related to the claims of third parties, for whatever reason, in respect of the use by the Customer of the Software of Third Parties, including any acts of the Customer that violate the applicable user terms and conditions with regard to the Software of Third Parties or a breach of the Intellectual Property rights in respect of Software of Third Parties.

 

Article 6. Service and support

 

6.1               XSO will act to the best of its ability to perform the Service with care. The Service is performed on the basis of a best efforts obligation.

6.2               XSO can change the content or the scope of the Service. XSO will inform the Customer thereof in a timely fashion. When it involves a substantial amendment with regard to the Service that was agreed, the Customer is entitled to terminate the Agreement in writing within thirty days after having received the notification per the date on which the amendment was to take effect.

6.3               The support provided by XSO consists of the providing of advice on the use and functioning of the Software via telephone and email. XSO will deal with well supported requests for Support within a reasonable period. The Support is only provided on work days during the usual opening hours of XSO.

 

Article 7. Price and payment

 

7.1               All prices are excluding VAT and other levies legally or otherwise imposed. Unless otherwise is stated, all the prices are listed in Euro and the Customer must pay the invoices in Euro.

7.2               XSO is entitled to adjust the applicable prices and fees in writing subject to an advance period of at least three months. XSO is permitted to change the price if the price increase is the result of one of the following factors: i) raised taxes or other levies and/or government rights, ii) exchange rate fluctuations, iii) increase in salaries, transport costs and/or purchase prices.

7.3               The prices depend on the Software chosen and the number of users of the Software. All the amounts that relate to the Service are always payable in advance per calendar year. Payments must be made within 30 days of the date of invoice, unless otherwise has been agreed in writing or is stated on the invoice.

7.4               If, after this period has lapsed, XSO has not been (fully) paid, the Customer is immediately declared in default without requiring a prior summons or notice of default. From the moment of default, the Customer must pay interest equal to the legal late payment interest.

7.5               If, after the summons or notice of default, the Customer still fails to pay the receivable, XSO is permitted to transfer the receivable. In that case the costs incurred by XSO due to the late payment, such as litigation costs and extra judicial and judicial costs, including costs for legal aid, bailiffs and debt collection agencies, are payable by the Customer. The extra judicial costs will amount to at least 10% of the invoiced amount, with a minimum of EUR 250. - excluding VAT.

7.6               Complaints concerning the invoices, the Service and/or Software do not constitute a suspension of the payment obligation of the Customer.

7.7               XSO is entitled to suspend the meeting of its obligations until the Customer has met all its due obligations.

 

Article 8. Duration and termination

 

8.1               The Agreement is entered into for a period of one year. The Agreement is automatically extended by the duration of the original period, unless the Customer or XSO terminate the Agreement in writing with due observance of the notice period of two months prior to the end of the period.

8.2               Each Party is entitled to dissolve the Agreement, fully or partially, in the event of a bankruptcy or suspension of payment of the other Party, as well as in the event that the company of the other Party has been terminated or liquidated other than for the reconstruction or merger of companies, or if the ultimate control over the company of the other Party changes.

8.3               The Agreement can only be dissolved on the basis of an attributable shortcoming following a written notice of default providing as much details as possible, thereby stating a reasonable period within which the shortcoming is to be resolved unless otherwise is stated in these User Terms and Conditions.

8.4               In the event of a dissolution of the Agreement, the dissolution does not include all that XSO has already supplied and/or performed and the subsequent payment obligation, unless the Customer is able to prove that XSO is in default for a substantial part of these performances. Amounts invoiced by XSO before the dissolution in respect of all that XSO has already correctly performed or supplied in performing the Agreement, will remain payable with due observance of the previous sentence and become payable immediately upon the moment the Agreement is dissolved.

8.5               If the Agreement ends, for whatever reason, then all the rights that the Customer had under the Agreement are also terminated at the same time, including, but not limited to, the user right with regard to the Software. The Customer will remove all the copies of the Software, files or materials supplied by XSO as part of the Agreement and return these to XSO. XSO is not obliged to assist the Customer upon or after the termination of the Agreement in respect of any data conversion requested by the Customer.         

 

Article 9. Indemnifications and guarantees

 

9.1               The Customer is responsible for the correct installation, set up and use and for the correct settings of the Software.

9.2               The Customer bears the sole responsibility for the management, the monitoring of the settings, the use of the Service, the Software and the results thereof. XSO does not guarantee the correctness, integrity, reliability or completeness of any result or consequence of the Service or the Software.

9.3               XSO does not guarantee the Software made and held available to the Customer as part of the performance of the Service is without errors and functions without interruption. XSO also does not guarantee that the Software is suitable for the factual and/or intended use by the Customer.

9.4               XSO will do its best to remove Errors in the Software for free and within a reasonable period if these have been reported in detail and in writing within a period of three months of concluding the initial Agreement.

9.5               XSO is not complied to remove any Errors that occur outside the period stated in article 9.4. If XSO decides to remove the Errors, then the activities performed by XSO will be invoiced to the Customer at the usual fees applied by XSO.

9.6               XSO is not obliged to remove Errors if this is the result of incorrect or inexpert use by the Customer, use contrary to that stated in the Agreement or these User Terms and Conditions or another cause that cannot be attributed to XSO.

9.7               XSO is always entitled to implement temporary solutions or program diversions or problem avoiding limitations in the Software. XSO is never obliged to retrieve any damaged or lost data.

9.8               XSO bears no responsibility for the purchase and/or correct operation of the infrastructure of the Customer. XSO is not liable for damage or costs resulting from transmission errors, disruptions or the unavailability of computer data or telecom facilities, including internet.

9.9               The Client indemnifies XSO against all damage and costs, including, but not limited to, damage resulting from (suspected) breaches of IP rights, claims of third parties, debt collection costs, legal late payment interest, loss of profit, payable penalties and costs of legal assistance, suffered or incurred by XSO as a result of (i) attributable shortcoming of the Customer in meeting the Agreement, (ii) any act of the Customer in the performance of this Agreement or (iii) an unlawful act.

Article 10. Liability

 

10.1           The liability of XSO due to an attributable shortcoming in meeting its obligations, is respect of an unlawful and/or other act, is limited to the payment of the damage suffered by the Customer; this sum is maximized to the annual fee for one calendar year for the performance of the Agreement. However, the total liability of XSO for direct damages suffered for whatever reason, will in no way exceed EUR 1,000. This limitation of liability also explicitly applies to the guarantees stated in article 9 of these User Terms and Conditions.

10.2           Direct damage exclusively refers to:

a.                  reasonable costs incurred by the Customer in order to have the performance of XSO meet the Agreement; however, this replacement damage is not compensated if the Agreement is dissolved by or by order of the Customer.

b.                 reasonable costs incurred by the Customer for the necessity to keep his old system or systems and the accompanying facilities running for longer due XSO not delivering on the agreed date of delivery, less any savings resulting from the late delivery;

c.                  reasonable costs made to determine the cause and the scope of the damage, insofar as the determination relates to direct damage within the meaning of this Agreement;

d.                 reasonable costs incurred in order to prevent or limit damage, insofar as the Customer can prove that these costs have led to a limitation of direct damage within the meaning of this Agreement.

10.3           Any liability of XSO for any damage other than direct damage ("indirect damage"), including, but not limited to, consequential damage, loss and/or damage of data, loss of profit and loss of turnover, is excluded.

10.4           The limitations listed in the forgoing paragraphs of this article do not apply if and insofar as the damage is the result of intent or conscious recklessness of XSO or its managers ("own acts").

10.5           The liability of XSO for an attributable shortcoming in the meeting of an Agreement arises in all events only if the Customer immediately and correctly declares the XSO in default in writing, whereby a reasonable period for the removing of the attributable shortcoming is set, and XSO continues to fail to meets its obligations after that period, except in the event of a permanent attributable shortcoming. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, in order to enable XSO to respond adequately.

10.6           A conditition for the arising of any entitlement to payment of damages is always that the Customer reports the damage to XSO as soon as possible after the damage have arisen. Each claim for damages against XSO is automatically nullified if 12 months have lapsed since the claim has arisen.

 

Article 11. Force Majeure

 

11.1             None of the parties is complied to meet any obligation, including any guarantee obligation agreed by the parties, if the party cannot comply due to a force majeure.

11.2             Force majeure includes: force majeure of suppliers of XSO; the suppliers of XSO meeting the obligations the Customer has prescribed to XSO; the inadequacy of items, equipment, programs or materials of third parties of which the Customer prescribed the use to XSO; government measures; power failure; internet failure; computer network or telecommunication facilities; war; strike; general transport issues; and the unavailability of one or more staff members.

11.3             In the event of a force majeure, XSO is entitled to suspend its obligations from the Agreement, or to fully or partly dissolve the Agreement, without this resulting in any obligation to payment of damages to the Customer.

11.4             If the force majeure situation lasts longer than 3 months, the Customer is entitled to dissolve the Agreement in writing without XSO being obliged to pay damages.

 

Article 12. Other

 

12.1           The Customer is not entitled to transfer the Agreement or the rights and/or obligations from the Agreement to a third party.

12.2           XSO is entitled to transfer its claims to payment of fees to a third party. XSO is also entitled to have the Agreement, fully of partly, performed by a third party and to engage the services of third parties for the performance of the Agreement.

12.3           The Agreements concluded by XSO and the Customer are governed by Dutch law with the exclusion of the Vienna Sales Convention 1980.

12.4           Insofar as national or international imperative legislation does not provide otherwise, all dispute resulting from or relating to the Agreements concluded subject to these User Terms and Conditions as well any agreements resulting therefrom can only be brought before the competent court in Amsterdam.