Article 1. Definitions

• Service: the provision of the Software, either remotely through the hosted service, or by offering the Software as a download, including Support.

• Error: the substantial failure to meet the functional or technical specifications of the Software as communicated in writing by XSO. An Error only exists if the Customer can demonstrate it and if it is reproducible. The Customer is required to notify XSO of Errors without delay.

• Terms of Use: these terms of use.

• IP Rights: all intellectual property rights and related rights, such as copyright, trademark rights, patent rights, design rights, trade name rights, database rights, and neighbouring rights, as well as rights relating to know-how and one-line performances.

• Customer: a natural person or business entity that has entered into an Agreement with XSO for the purpose of the Service.

• Agreement: any agreement entered into by XSO with the Customer.

• Support: off-site support, consisting of telephone support, email support, or support through remote access, the provision of updates, and — if agreed — the management of backups.

• Parties: XSO and the Customer jointly.

• Software: the software developed by XSO that enables the Customer to perform time registration, including updates. There are different versions of the Software; in these Terms of Use, “Software” refers only to the version chosen by the Customer and for which the Customer has entered into an Agreement with XSO.

 

Article 2. Applicability and the Agreement

2.1 These Terms of Use apply to all legal acts of XSO, all legal relationships between the Parties, and all offers and Agreements between the Parties.

2.2 Deviations from and additions to these Terms of Use are only valid if agreed in writing between the Parties.

2.3 The applicability of the Customer’s purchase or other terms and conditions is expressly rejected.

2.4 If any provision of these Terms of Use proves to be null and void or voidable, or otherwise wholly or partially invalid, the remaining provisions of the Terms of Use shall remain in full force. XSO shall replace the invalid provision with a valid provision, the legal effect of which, given the content and purpose of these Terms of Use, corresponds as closely as possible to that of the invalid provision.

2.5 All offers and other statements made by XSO are without obligation, unless otherwise indicated.

2.6 The Customer guarantees the accuracy and completeness of the data provided by or on behalf of the Customer to XSO, on which XSO bases its offer.

2.7 The Customer places an order by completing the order form on the XSO website. Based on this order form, XSO will make an offer to the Customer by email. The Agreement is concluded at the moment the Customer confirms XSO’s offer.

 

 

Article 3. The Software and the Right of Use

3.1 Provided that the Customer has fulfilled its payment obligations, XSO grants the Customer a non-exclusive, non-transferable and non-sublicensable license to use the Software in accordance with the provisions of the Agreement and these Terms of Use.

3.2 The Customer may either obtain the Software as a Hosted Service or download and install it on its own server. If the Customer has chosen to download the Software, the provisions under section A apply. If the Customer has chosen the Hosted Service, the provisions under section B apply.

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A: Own Installation

3.3 XSO will make the Software and the associated user documentation available to the Customer for download.

3.4 The right of use covers only the object code of the Software and does not extend to the source code. The source code of the Software will not be made available to the Customer.

3.5 The Customer shall install, configure, parameterize, and tune the Software itself and, if necessary, adapt the equipment and operating environment used. XSO is not obliged to perform data conversion.

3.6 The Customer accepts the Software in the state it is in at the time of delivery (“as is”), with all visible and invisible Errors and defects, without prejudice to XSO’s obligations under the warranty scheme set out in Article 9.

3.7 The Customer may use the Software solely within and for the benefit of its own business or organization and solely for its intended purpose.

3.8 Except where mandatory law permits or as provided in the Agreement or these Terms of Use, the Customer may not disclose, reproduce, modify, decompile, or apply reverse engineering to the Software.

3.9 The Customer is not permitted to sell, rent, alienate, grant limited rights to, or otherwise make the Software available to any third party, in whole or in part, for any purpose. Nor may the Customer grant any third party access to the Software, whether remote or otherwise.

3.10 At XSO’s request, the Customer shall promptly provide full cooperation with an audit carried out by or on behalf of XSO regarding the Customer’s compliance with agreed usage restrictions. In this context, the Customer shall grant access to its premises, systems, and accounting records. XSO shall make every effort to ensure that such audit limits the Customer’s business operations as little as possible. XSO shall treat information obtained as a result of the audit as confidential. The costs of the audit shall be borne by XSO, unless the audit reveals irregularities, in which case the costs shall be borne by the Customer, without prejudice to XSO’s other rights to take action against the Customer.

3.11 Unless otherwise agreed, XSO does not provide maintenance on the Software.

3.12 The Customer is responsible for making proper backups of the Software.

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B: Hosted Service

3.13 XSO shall make the Software and the associated user documentation available to the Customer remotely, without providing a physical medium or a copy of the Software.

3.14 The right of use covers only the object code of the Software and does not extend to the source code. The source code will not be made available to the Customer.

3.15 The Customer accepts the Software in the state it is in at the time of delivery (“as is”), with all visible and invisible Errors and defects, without prejudice to XSO’s obligations under the warranty scheme set out in Article 9.

3.16 The Customer may use the Software solely within and for the benefit of its own business or organization and solely for its intended purpose.

3.17 Except where mandatory law permits or as provided in the Agreement or these Terms of Use, the Customer may not disclose, reproduce, modify, decompile, or apply reverse engineering to the Software.

3.18 The Customer is not permitted to sell, rent, alienate, grant limited rights to, or otherwise make the Software or access thereto available to any third party, in whole or in part, for any purpose. Nor may the Customer grant any third party access to the Software, whether remote or otherwise.

3.19 At XSO’s request, the Customer shall promptly provide full cooperation with an investigation carried out by or on behalf of XSO regarding the Customer’s compliance with agreed usage restrictions.

3.20 XSO shall make a full backup of the Customer’s data in its possession three times per day, at 08:00, 12:00 and 18:00. XSO shall handle the backup with due care and shall retain the 30 most recent unique backups at all times.

3.21 XSO may continue providing the Service using a new or modified version of the Software. Unless expressly agreed otherwise in writing, XSO is not obliged to maintain, alter, or add specific features or functionalities of the Service or the Software specifically for the Customer.

3.22 XSO may temporarily disable the Software in whole or in part and/or restrict its use if it deems this necessary, for example for preventive, corrective, or adaptive maintenance. XSO will inform the Customer as soon as possible, but at least five (5) working days in advance, of (temporary) unavailability or restrictions on the use of the Software. If an emergency requires the Software to be taken out of service immediately or its use restricted, XSO shall inform the Customer as soon as reasonably possible.

3.23 In performing the Service as a Hosted Service, XSO may process personal data of the Customer within the meaning of the Dutch Data Protection Act (Wbp). In relation to the Customer, XSO acts as a processor within the meaning of the Wbp. XSO shall implement appropriate technical and organizational measures to protect such personal data against loss or any form of unlawful processing. Taking into account the state of the art and the costs of implementation, these measures shall ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected.

Article 4. Intellectual Property Rights

4.1 All Intellectual Property Rights to the Software, files, materials, and documentation made available to the Customer under the Agreement are held exclusively by XSO or its licensors.

4.2 The Customer is not permitted to remove or alter any designation concerning the confidential nature of, or any Intellectual Property Rights to, the Software, files, or materials.

4.3 XSO may implement technical measures to protect the Software, files, or materials in connection with an agreed restriction on the content or duration of the license. The Customer is not permitted to remove or circumvent such technical measures, nor to have them removed or circumvented.

4.4 The Customer is not permitted to make changes or additions to, or to have third parties perform maintenance or repairs on, the Software, files, or materials supplied by XSO.

 

Article 5. Third-Party Software

5.1 The Software makes use of Third-Party Software. The (license) terms and conditions of such third parties apply to the use of Third-Party Software, notwithstanding any conflicting provisions in these Terms of Use. The Customer accepts the applicable user conditions with respect to the relevant Third-Party Software. The applicable (license) terms and conditions of third parties can be found in the docs/licenses folder of your TimeWriter5 installation.

5.2 If and insofar as the said third-party terms are deemed not to apply, or are declared inapplicable, in the relationship between the Customer and supplier for any reason, the provisions of these Terms of Use shall apply without limitation.

5.3 The Customer shall indemnify XSO against all damages and costs arising from and/or related to claims by third parties, on any grounds whatsoever, in connection with the Customer’s use of Third-Party Software, including any act by the Customer in violation of the applicable user conditions relating to the Third-Party Software, or any infringement of Intellectual Property Rights relating to the Third-Party Software.

Article 6. Services and Support

6.1 XSO shall use its best efforts to perform the Service with due care. The Service is performed on the basis of a best-efforts obligation.

6.2 XSO may make changes to the content or scope of the Service. XSO will inform the Customer thereof as soon as possible. If such changes constitute a material modification of the Service as agreed, the Customer has the right to terminate the Agreement in writing within thirty (30) days of notification, effective as of the date the modification takes effect.

6.3 The Support provided by XSO consists of advising by telephone or email on the use and functioning of the Software. XSO will process properly substantiated requests for Support within a reasonable period of time. Support is provided only on business days during XSO’s regular office hours.

 

Article 7. Prices and Payment

7.1 All prices are exclusive of VAT and other government-imposed levies or duties. Unless otherwise indicated, all prices are in euros, and the Customer shall make all payments in euros.

7.2 XSO is entitled to adjust the applicable prices and rates by giving at least three months’ written notice. XSO has the right to adjust prices in any case where the price increase results from one or more of the following factors: (i) increases in taxes or other government levies and/or duties, (ii) changes in exchange rates, (iii) increases in wages, transportation costs, and/or purchase prices.

7.3 Prices depend on the chosen Software and the number of users of the Software. All amounts relating to the Service are due in advance per calendar year. Payments must be made within 30 days of the invoice date, unless otherwise agreed in writing or otherwise specified on the invoice.

7.4 If XSO has not received (full) payment after the expiry of this period, the Customer shall be in default immediately, without the need for prior notice of default. From the moment of default, the Customer shall owe interest equal to the statutory commercial interest rate.

7.5 If, after a reminder or notice of default, the Customer remains negligent in settling the debt, XSO may hand over the claim for collection. In that case, all costs incurred by XSO in connection with the late payment — including, but not limited to, legal fees, collection agency fees, bailiff costs, and court costs — shall be borne by the Customer. The extrajudicial collection costs are set at a minimum of 10% of the invoice amount with a minimum of €250 excluding VAT.

7.6 Complaints regarding invoices, the Service, and/or the Software do not suspend the Customer’s payment obligations.

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

 

Article 8. Term and Termination

8.1 The Agreement is entered into for a term of one (1) year. The Agreement shall automatically be renewed for successive terms equal to the initial term, unless either the Customer or XSO terminates the Agreement in writing with due observance of a notice period of two (2) months prior to the end of the current term.

8.2 Each Party is entitled to dissolve the Agreement in whole or in part in the event of the bankruptcy or suspension of payments (surséance van betaling) of the other Party, as well as in the event of discontinuation or liquidation of the other Party’s business other than for purposes of reorganization or merger, or if decisive control over the other Party’s business changes.

8.3 Termination of the Agreement due to an attributable failure is only permitted after a written notice of default has been issued, providing as much detail as possible and granting a reasonable period to remedy the failure, unless otherwise provided in these Terms of Use.

8.4 In the event of termination of the Agreement, there shall be no obligation to undo what XSO has already delivered and/or performed, and the corresponding payment obligation shall remain in force, unless the Customer proves that XSO is in default with respect to a material part of such performance. Amounts invoiced by XSO prior to termination in connection with services or deliveries already properly performed under the Agreement remain fully due and become immediately payable at the time of termination.

8.5 Upon termination of the Agreement, for any reason whatsoever, all rights granted to the Customer under the Agreement shall simultaneously cease, including — but not limited to — the right of use of the Software. Immediately after the end of the Agreement, the Customer shall delete from its systems and return to XSO all copies of the Software, files, or materials provided by XSO under the Agreement. Upon or after termination of the Agreement, XSO shall not be obliged to assist the Customer with any data conversion desired by the Customer.

 

Article 9. Warranties and Indemnities

9.1 The Customer is responsible for the proper installation, assembly, commissioning, and configuration of the Software.

9.2 The Customer is solely responsible for the management, including verification of the settings, and the use of the Service, the Software, and the results thereof. XSO does not warrant the accuracy, integrity, reliability, or completeness of any result or outcome of the Service or the Software.

9.3 XSO does not warrant that the Software made available and kept available to the Customer in the context of the Service will be error-free and uninterrupted. Nor does XSO warrant that the Software is suitable for the Customer’s actual and/or intended use.

9.4 XSO shall use its best efforts to correct Errors in the Software free of charge and within a reasonable period of time if these are reported to XSO in writing, with a detailed description, within three months after the conclusion of the initial Agreement.

9.5 Beyond the period referred to in Article 9.4, XSO is under no obligation to correct Errors. If XSO nevertheless proceeds to correct Errors, such work shall be charged to the Customer at XSO’s prevailing rates.

9.6 XSO shall never be obliged to correct Errors if these result from user errors or improper use by the Customer, use in violation of the Agreement or these Terms of Use, or any other cause not attributable to XSO.

9.7 XSO is always entitled to implement temporary solutions, workarounds, or problem-avoiding restrictions in the Software. XSO shall never be obliged to restore corrupted or lost data.

9.8 XSO is not responsible for the acquisition and/or proper functioning of the Customer’s infrastructure. XSO is not liable for damage or costs due to transmission errors, malfunctions, or unavailability of computer, data, or telecommunication facilities, including the internet.

9.9 The Customer shall indemnify XSO against all damages and costs, including — but not limited to — damages arising from (alleged) infringements of Intellectual Property Rights, third-party claims, collection costs, statutory commercial interest, lost profits, penalties, and legal expenses, incurred by XSO as a result of (i) an attributable failure in the performance of the Agreement by the Customer, (ii) any act of the Customer in the performance of this Agreement, or (iii) a tort.

 

Article 10. Liability

10.1 The liability of XSO for an attributable failure in the performance of its obligations, on the grounds of tort, and/or on any other basis, is limited to compensation of direct damages suffered by the Customer up to a maximum of the fee agreed for the execution of the Agreement for one (1) calendar year. In no event shall XSO’s total liability for direct damages, on any legal ground whatsoever, exceed €1,000. This limitation of liability expressly also applies to the warranties in Article 9 of these Terms of Use.

10.2 For the purposes of this Agreement, “direct damages” shall mean exclusively:

a. Reasonable costs which the Customer would need to incur to have XSO’s performance under the Agreement conform to the Agreement; however, such substitute damages shall not be compensated if the Agreement is dissolved by or at the request of the Customer.

b. Reasonable costs incurred by the Customer for the necessity of keeping its old system(s) and related facilities operational for longer than planned due to XSO not having delivered by a binding final delivery date, less any savings resulting from the delayed delivery.

c. Reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to direct damage as defined in this Agreement.

d. Reasonable costs incurred in preventing or limiting damage, insofar as the Customer demonstrates that such costs have led to the limitation of direct damage as defined in this Agreement.

10.3 Any liability of XSO for damages other than direct damages (“indirect damages”) is excluded. Indirect damages include, but are not limited to, consequential damages, loss and/or corruption of data, loss of profits, and loss of turnover.

10.4 The limitations set out in the preceding paragraphs of this Article shall not apply in the event that and insofar as the damage results from intent or deliberate recklessness by XSO or its executive management (“own acts”).

10.5 XSO’s liability for an attributable failure in the performance of an Agreement shall only arise if the Customer has promptly and properly served XSO with a written notice of default, granting a reasonable period to remedy the failure, and XSO continues to fail imputably in the performance of its obligations after that period, except in the case of a permanent attributable failure. The notice of default shall contain as complete and detailed a description of the failure as possible, so that XSO is able to respond adequately.

10.6 A prerequisite for any right to damages is that the Customer reports the damage in writing to XSO as soon as possible after the damage has occurred. Any claim for damages against XSO shall lapse twelve (12) months after the claim arises.

 

Article 11. Force Majeure

11.1 Neither Party shall be obliged to perform any obligation, including any warranty obligation agreed between the Parties, if it is prevented from doing so as a result of force majeure.

11.2 Force majeure shall include, but not be limited to: force majeure affecting XSO’s suppliers; failure by suppliers prescribed to XSO by the Customer to properly perform their obligations; defects in goods, equipment, software, or materials of third parties, the use of which has been prescribed to XSO by the Customer; government measures; power outages; failures of internet, computer network, or telecommunications facilities; war; strikes; general transportation problems; and the unavailability of one or more members of staff.

11.3 In the event of force majeure, XSO shall be entitled to suspend its obligations under the Agreement, or to dissolve the Agreement in whole or in part, without any obligation to pay compensation to the Customer.

11.4 If the force majeure situation lasts longer than three (3) months, the Customer shall be entitled to terminate the Agreement in writing, without XSO being obliged to pay any compensation.

 

 

Article 12. Miscellaneous

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

12.2 XSO is entitled to assign its claims for payment of fees to a third party. XSO is also entitled to have the Agreement performed in whole or in part by third parties, or to engage third parties in the performance of the Agreement.

12.3 The Agreements between XSO and the Customer shall be governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) is excluded.

12.4 Unless mandatory national or international legal provisions dictate otherwise, all disputes arising out of or in connection with Agreements concluded under these Terms of Use, or Agreements resulting therefrom, shall be submitted exclusively to the competent court in Amsterdam, the Netherlands.