In these Terms of Use, the following terms, when capitalised, have the following meaning:
2.1
These Terms of Use apply to all offers, legal acts and Agreements of XSO and to all legal relationships between XSO and the Customer.
2.2
Deviations from or additions to these Terms of Use are valid only if agreed in writing by the Parties.
2.3
The applicability of purchasing conditions or other conditions of the Customer is expressly rejected.
2.4
If any provision of these Terms of Use proves to be void, voidable or for any other reason wholly or partly invalid, the remaining provisions shall remain in full force. XSO shall replace the provision concerned with a valid provision that, having regard to the content and purpose of these Terms of Use, approximates the original legal effect as closely as possible.
2.5
All offers and other statements by XSO are without obligation, unless expressly indicated otherwise.
2.6
The Customer guarantees the accuracy and completeness of all information provided to XSO by or on behalf of the Customer on which XSO bases its offer or services.
2.7
The Customer may place an order by completing the order form on the XSO website. In response, XSO makes the Customer an offer, for example by e-mail. The Agreement is formed at the moment the Customer confirms this offer, unless XSO has expressly indicated another manner of formation.
3.1
On condition that the Customer has fulfilled its payment obligations, XSO grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the Software in accordance with the Agreement and these Terms of Use.
3.2
The Customer may use the Software as a hosted service or download the Software and install it on its own server or another suitable environment. The provisions in section A apply to a self-hosted installation. The provisions in section B apply to the hosted service.
3.3
XSO makes the Software and the accompanying user documentation available to the Customer so that they can be downloaded by the Customer.
3.4
The right of use relates exclusively to the object code of the Software and does not extend to the source code. The source code is not made available to the Customer.
3.5
The Customer is itself responsible for installing, setting up, parameterising and tuning the Software and, where necessary, for adapting the equipment and operating environment used. XSO is not obliged to perform data conversions unless this has been expressly agreed in writing.
3.6
The Customer accepts the Software in the state it is in at the time of delivery, subject to the obligations of XSO under Article 9.
3.7
The Customer may use the Software only within and for the benefit of its own business or organisation and only for its intended use.
3.8
Insofar as mandatory law does not provide otherwise, the Customer is not permitted to publish, reproduce, modify or decompile the Software or to apply reverse engineering to it, unless this is expressly permitted under the Agreement or these Terms of Use.
3.9
The Customer is not permitted to sell, rent out, transfer or encumber the Software or to grant limited rights to it. Nor may the Customer make the Software available to third parties in any way whatsoever or grant third parties access to the Software, unless XSO has given prior written consent.
3.10
On request, the Customer shall without delay give its full cooperation to an audit carried out by or on behalf of XSO into compliance with the agreed restrictions on use.
Insofar as reasonably necessary for such an audit, the Customer shall grant access to relevant systems, records and locations. XSO shall endeavour to disrupt the Customer's normal business operations as little as possible and shall treat confidential information obtained in the course of the audit as confidential.
The costs of an audit shall be borne by XSO, unless the audit reveals a material irregularity or breach of the agreed terms of use. In that case, the reasonable costs of the audit shall be borne by the Customer, without prejudice to XSO's other rights.
3.11
Unless otherwise agreed in writing, XSO is not obliged to carry out maintenance work on a version of the Software installed by the Customer itself.
3.12
The Customer is itself responsible for making and checking proper back-ups of data and configurations relating to the Software used by the Customer.
3.13
XSO makes the Software and the accompanying user documentation available to the Customer remotely. The Customer is not provided with a copy of the source code or an independently transferable copy of the Software.
3.14
The right of use extends exclusively to the use of the Software as made available by XSO as a hosted service. The source code is not made available to the Customer.
3.15
XSO makes the Software available in the state it is in at the time it is made available, subject to the obligations of XSO under Article 9.
3.16
The Customer may use the Software only within and for the benefit of its own business or organisation and only for its intended use.
3.17
Insofar as mandatory law does not provide otherwise, the Customer is not permitted to publish, reproduce, modify or decompile the Software or to apply reverse engineering to it.
3.18
The Customer is not permitted to sell, rent out, transfer or encumber the Software or access to the Software, or to make it available to third parties. Nor may the Customer grant third parties access to the Software, unless XSO has given prior written consent.
3.19
On request, the Customer shall without delay give its full cooperation to an investigation carried out by or on behalf of XSO into compliance with the agreed restrictions on use.
3.20
XSO makes a full back-up of the Customer's data stored at XSO three times a day, namely at 08:00, 12:00 and 18:00. XSO retains the thirty most recent unique back-ups, unless otherwise agreed in writing.
3.21
XSO is entitled to continue the Service using a new or modified version of the Software. Unless expressly agreed otherwise in writing, XSO is not obliged to maintain specific features or functionalities of the Service or the Software unchanged for the Customer.
3.22
XSO is entitled to temporarily take the Software wholly or partly out of use or to restrict its use if this is reasonably necessary, for example in connection with preventive, corrective or adaptive maintenance.
Where reasonably possible, XSO shall inform the Customer in advance of planned unavailability or restrictions. In an emergency requiring immediate measures, XSO shall inform the Customer as soon as possible.
3.23
If XSO processes personal data on behalf of the Customer in the performance of the hosted service, the Customer in principle acts as controller and XSO as processor, insofar as the actual processing justifies these roles.
If and insofar as applicable privacy legislation so requires, the Parties shall make additional arrangements regarding the processing of personal data. XSO shall take appropriate technical and organisational measures to protect personal data against loss and against unlawful processing, taking into account the nature of the processing, the state of the art, the costs of implementation and the risks to data subjects.
4.1
All IP Rights in the Software, files, materials and documentation made available to the Customer under the Agreement rest exclusively with XSO or its licensors.
4.2
The Customer is not permitted to remove or alter any notices concerning the confidential nature of the Software, files or materials or any notices concerning IP Rights.
4.3
XSO is entitled to implement or have implemented technical measures to protect the Software, files or materials, for example in connection with restrictions on the content, scope or duration of a licence. The Customer is not permitted to remove or circumvent such technical measures.
4.4
The Customer is not permitted, without the prior written consent of XSO, to make or have made any modifications or additions to the Software, files or materials supplied by XSO, except insofar as mandatory law provides otherwise.
5.1
The Software may make use of Third-Party Software. Separate licence or usage terms may apply to the use of such Third-Party Software. If such terms apply, they shall, insofar as necessary, prevail over any conflicting provisions of these Terms of Use.
The applicable licence terms for Third-Party Software can, where available, be found in the documentation intended for that purpose or in the docs/licenses folder of the TimeWriter installation.
5.2
If and insofar as third-party terms prove, for whatever reason, not to apply or are declared inapplicable in the relationship between the Customer and the supplier concerned, these Terms of Use shall otherwise continue to apply in full.
5.3
The Customer indemnifies XSO against third-party claims and the resulting reasonable costs and damage, insofar as these result from the Customer's use of Third-Party Software in breach of the terms applicable to it or from an infringement of third-party rights committed by the Customer.
6.1
XSO shall make every reasonable effort to perform the Service with due care. The Service is performed on the basis of a best-efforts obligation, unless an obligation to achieve a specific result has been expressly agreed in writing.
6.2
XSO is entitled to make changes to the content or scope of the Service. Where reasonably possible, XSO shall inform the Customer of this in good time.
In the event of a substantial change to the agreed Service that is materially detrimental to the Customer, the Customer is entitled to terminate the Agreement in writing within thirty days after the change has been announced, with effect from the date on which the change takes effect.
6.3
The Support provided by XSO consists of advice by telephone or e-mail on the use and functioning of the Software and may, if agreed, also include remote support.
XSO shall handle properly substantiated requests for Support within a reasonable period. Support is in principle provided only on working days during XSO's usual business hours.
7.1
All prices are exclusive of VAT and other levies imposed by government. Unless indicated otherwise, all amounts are in euros and payments must be made in euros.
7.2
XSO is entitled to change the applicable prices and rates subject to a notice period of at least three months, unless a shorter period results from a change in taxes, levies or other external circumstances beyond XSO's control.
A price change may relate, among other things, to changes in taxes or levies, exchange rates, wage costs, transport costs or purchase prices.
7.3
The price depends on the chosen version of the Software, the chosen Service and the number of users. Amounts relating to an ongoing Service are, unless otherwise agreed, payable in advance per calendar year.
Payments must be made within thirty days of the invoice date, unless otherwise agreed in writing or a different payment term is stated on the invoice.
7.4
If XSO has not received full payment after expiry of the agreed payment term, the Customer is in default, insofar as this is possible under applicable law without further notice of default.
From the moment of default, the Customer owes the applicable statutory interest or statutory commercial interest.
7.5
If the Customer remains in default of payment after a reminder or notice of default, XSO is entitled to hand the claim over for collection. The reasonable costs incurred by XSO in connection with collection, including judicial and extrajudicial collection costs and the costs of legal assistance, bailiffs and collection agencies, shall be borne by the Customer insofar as the law permits.
7.6
Complaints relating to invoices, the Service or the Software do not suspend the Customer's payment obligations, insofar as suspension is not permitted under mandatory law.
7.7
XSO is entitled to suspend the performance of its obligations until the Customer has fulfilled its due and payable obligations towards XSO, insofar as the law and the circumstances permit.
8.1
The Agreement is entered into for a term of one year. On expiry, the Agreement is tacitly renewed each time for the duration of the original contract period, unless a Party terminates the Agreement in writing subject to a notice period of two months before the end of the current contract period.
8.2
Each Party is entitled to dissolve the Agreement in whole or in part if the other Party is declared bankrupt, applies for or is granted a suspension of payments, or ceases or liquidates its business, other than in the context of a reorganisation or merger of businesses, insofar as the law permits dissolution in those circumstances.
8.3
Dissolution on the grounds of an attributable failure is, unless the law or these Terms of Use provide otherwise, only possible after the defaulting Party has been given written notice of default in sufficient detail and a reasonable period to remedy the failure.
8.4
In the event of dissolution, no reversal shall take place of performance that XSO has already properly delivered or carried out, insofar as the law does not preclude this.
Amounts invoiced by XSO before dissolution for performance already properly delivered or carried out remain payable and, insofar as they were not yet due, become due at the moment of dissolution.
8.5
If the Agreement ends, all rights of use the Customer had under the Agreement end at the same time, unless otherwise agreed in writing or mandatory law provides otherwise.
After termination of the Agreement, the Customer must delete, or at XSO's request return, all copies of the Software, files and materials made available to it under the Agreement that it is no longer permitted to use.
After termination of the Agreement, XSO is not obliged to assist the Customer with any data conversion desired by the Customer, unless otherwise agreed in writing.
9.1
In the case of a self-hosted installation, the Customer is responsible for the correct installation, set-up and commissioning of the Software and for the correct settings of the systems used.
9.2
The Customer is responsible for the management and use of the Service and the Software, including checking the relevant settings and the results obtained with the Software.
XSO does not guarantee the accuracy, completeness or suitability of data entered by the Customer or of results that depend on the data or settings entered by the Customer.
9.3
XSO does not guarantee that the Software will function entirely free of errors or without interruptions. Nor does XSO guarantee that the Software is suitable for any specific use or any use intended by the Customer.
9.4
XSO shall make every reasonable effort to repair Defects in the Software free of charge and within a reasonable period, provided these Defects have been reported to XSO in writing and in detail within three months after conclusion of the initial Agreement and meet the definition of Defect in Article 1.
9.5
After expiry of the period referred to in Article 9.4, XSO is not obliged to repair Defects free of charge, unless otherwise agreed in writing.
If XSO nevertheless carries out work after this period, XSO is entitled to charge its rates applicable at that time.
9.6
XSO is not obliged to repair Defects if they result from user errors, improper use, use in breach of the Agreement or these Terms of Use, modifications not carried out by or on behalf of XSO, or other causes that cannot reasonably be attributed to XSO.
9.7
XSO is entitled to apply temporary solutions, workarounds or restrictions to limit the consequences of a Defect. XSO is not obliged to restore corrupted or lost data, unless otherwise agreed in writing.
9.8
XSO is not responsible for the purchase, availability or proper functioning of the Customer's infrastructure. XSO is not liable for damage resulting solely from transmission errors, failures or the unavailability of computer, data or telecommunications facilities outside XSO's reasonable sphere of influence, including internet connections.
9.9
The Customer indemnifies XSO against third-party claims and the associated reasonable costs and damage, insofar as these result from:
10.1
XSO's liability for an attributable failure, unlawful act or on any other basis is, insofar as legally permitted, limited to compensation for direct damage.
XSO's total liability for direct damage is limited to a maximum of the amount the Customer has paid to XSO for the Service concerned over one calendar year, with an absolute maximum of € 1,000.
This limitation also applies to obligations arising from Article 9, insofar as the law permits such a limitation.
10.2
Direct damage means exclusively:
10.3
Any liability of XSO for indirect damage is excluded, insofar as legally permitted. Indirect damage includes, among other things, consequential damage, loss of profit, loss of turnover, loss of or damage to data, missed savings and business interruption losses.
10.4
The limitations and exclusions of liability set out in this Article do not apply insofar as the damage results from intent or deliberate recklessness on the part of XSO or of persons entrusted with the management of XSO's business, or insofar as a limitation or exclusion of liability is not permitted under mandatory law.
10.5
A right to compensation on the grounds of an attributable failure arises only after the Customer has, insofar as legally required, given XSO proper written notice of default and has given XSO a reasonable period to remedy the failure.
The notice of default must contain as complete and detailed a description of the failure as possible, so that XSO is able to respond adequately.
10.6
The Customer must report damage to XSO in writing as soon as possible after it has occurred.
Insofar as legally permitted, any claim for compensation against XSO lapses twelve months after the Customer has become aware, or could reasonably have become aware, of both the damage and the party liable for it.
11.1
Neither Party is obliged to perform any obligation if it is prevented from doing so as a result of force majeure.
11.2
Force majeure includes, among other things:
11.3
If XSO is prevented by force majeure from performing its obligations, XSO is entitled to suspend the performance of those obligations for the duration of the force majeure situation.
If the force majeure situation makes performance permanently impossible or continues for a period that justifies dissolution, XSO is entitled to terminate or dissolve the Agreement in whole or in part, insofar as the law permits, without being obliged to pay compensation for damage.
11.4
If a force majeure situation continues for longer than three months, the Customer is entitled to terminate the Agreement in writing insofar as continuation of the Agreement cannot reasonably be required of the Customer.
In that case, the Parties are not obliged to pay compensation for damage on account of the termination, except for amounts already due.
12.1
The Customer is not entitled to transfer the Agreement or any rights and obligations under it, in whole or in part, to a third party without the prior written consent of XSO.
12.2
XSO is entitled to transfer its claims to payment 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 its performance.
12.3
The Agreement and all legal relationships arising from it are governed exclusively by Dutch law.
The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980, also known as the Vienna Sales Convention, is excluded.
12.4
Insofar as mandatory law does not prescribe otherwise, disputes arising from or relating to these Terms of Use, the Agreement or legal relationships arising from them shall be submitted to the competent court.
If the Parties can validly designate an exclusively competent court, such disputes shall be submitted exclusively to the competent court in Amsterdam.
These Terms of Use enter into force on the date on which XSO declares them applicable to the Agreement.
In the event of a conflict between a provision of these Terms of Use and a provision expressly agreed in writing in an individual Agreement, the individual Agreement prevails insofar as it expressly deviates from these Terms of Use.
