Terms and conditions
- GENERAL
- The following terms and conditions will apply to, and form part of any contract Xpand Ukraine (hereinafter “Xpand”) and a natural or legal person (hereinafter “Customer”). They are regarded as formally and expressly accepted by the Customer. Varying general or special clauses of customers are only binding for us if they have been expressly accepted by Xpand in writing. Such varying clauses shall apply only to the transaction to which they relate.
- The Customer is not entitled to pledge any rights or obligations to a third party without written permission of Xpand.
- If one or more provisions of these general terms and conditions should for whatever reason lack binding force, the other provisions shall remain in full force.
- STATEMENT OF WORK DOCUMENT
- The service(s) and/or license(s) that Xpand will deliver will be specified in the Statement of Work document or Quote document. Unless mentioned otherwise, a Statement of Work document or Quote document has a validity period of thirty (30) days. An order placed on the basis of a Statement of Work document or Quote document will be deemed accepted if Xpand has not refused the order within eight (8) days.
- As soon as Xpand Portal Connector is used in an on-premise license, the number of Xpand Portal Connector users must be equal to the number of Microsoft Dynamics NAV users. Because no Xpand Portal Connector user can work without Microsoft Dynamics NAV user, this is obliged.
- The Statement of Work documents or Quote documents are always estimations in the way that they are based on information available at the time of drafting the Statement of Work document or Quote document, and, if applicable, on prices from third parties. Faulty or new information, or price changes by these third parties, may lead to a modification of the conditions and/or the prices.
- All references in sales brochures, data sheets and offers as to specifications, price and other details are without obligation and shall not be binding Xpand. Prices are only binding for Xpand once confirmed in writing within the Statement of Work or Quote document.
- PRICING
- Xpand is entitled to increase prices due to the change of exchange rates, changes in taxes, legal measures or any other necessary costs arising after the validity of the quotation of the order, however before the time of delivery or service.
- Outside normal office hours the tariffs mentioned in the Statement of Work document will be increased with:
50%
weekdays till 21.00 hr
50%
weekdays after 21.00 hr
50%
Saturday till 17.00 hr
100%
Sunday
- INVOICES
- Unless otherwise expressly agreed, payment of the amounts must be made within 14 days after the invoice date on the account of Xpand.
- The ownership of goods supplied by us passes to the customer as soon as it has paid us everything that is owed to us in respect of the supply of these goods. In case of bankruptcy or default of the Customer, Xpand is entitled to remove or arrange the removal of the delivered.
- In the event of overdue payment of amounts owed to Xpand, the other party is immediately in default, without notice of default being required, an interest at a rate of 8% per annum may be charged. To calculate the interest, each month will be considered as an entire month. Interests on the expiry of one year will be increased with an equal interest due.
- Any complaint regarding invoices should be sent to Xpand by registered letter within ten days after receipt of invoices. The lodging of complaints does not discharge the customer from the obligation to make payments of any undisputed amount of the invoice.
- Payments made by the other party will first of all be used to reduce the costs payable, then to reduce the interest payable and finally for the oldest outstanding amounts, irrespective of instruction of the other party to the contrary.
- The customer is not allowed to invoke a right of retention in respect of Xpand as regards storage costs and/or other claims that the customer has or alleges to have on Xpand.
- All invoices will delivered electronically by mail. If the customer prefers a paper document, this can be easily obtained on simple request to info@xpandsoftware.com.
- EXECUTION AND DELIVERY
- Xpand will use his best endeavors to deliver the service(s) and/or license(s) in accordance with the contract.
- Delivery and execution times are given as indications only and start when an agreement is reached on all the (technical) details and when all the data or materials that are useful for the execution are in the possession of Xpand, and when possible pre-payment has been received by Xpand. These times are always based on the assumption that Xpand can continue to work as foreseen at the moment of drafting the Statement of Work document.
- The deadline may be extended unilaterally by Xpand for any delay applying necessary elements to get the job done or by any delay in payments, including advanced payments.
- Unless otherwise expressly provided of gross negligence of Xpand, exceeding agreed delivery dates, for whatever reason, does not give the customer – even after notice of default – any right to dissolution, compensation and/or suspension.
- The customer acknowledges that the performance of the contract may in certain cases lead to the temporary unavailability of parts of the operational environment. In such case, Xpand will discuss this with the Customer.
- In order to obtain a favorable outcome, the customer will assign sufficiently qualified personnel. If the personnel assigned to the contract is replaced, the new employees will have equivalent qualifications. The customer acknowledges that the replacement or unavailability of the representatives in his project organization may lead to longer execution times, and as a consequence higher costs, of the project.
- Xpand shall ensure it utilizes sufficient and appropriately qualified personnel in the performance of the services for the Customer.
- ACCEPTANCE
- Standard software (i.e. software that is generally available and that has not been specifically developed for this contract, even if modifications or extensions have been done for the needs of the customer, but still within the boundaries of the basic possibilities of this software) will be deemed accepted when delivered, or, if applicable, installed as foreseen by the contract. The Service Desk agreement enters into force as from the signing of the Statement of Work document.
- Tailor-made software (i.e. software that has been developed by Xpand for this contract, and in particular the programming of integrated code units and functional objects in the standard software, integral add-on’s, being functional technical units that form a system or subsystem, additionally added to the standard software in order to meet the specific informatisation needs and wishes of the customer, as described in the contract, and that are not included in the standard software on the contract date) will be deemed accepted when it is functioning in a test environment of the customer and is transferred, with the customer’s consent, to the operational environment (“live”). The same goes when the whole or part of the tailor-made software is being used by the customer, in whatever way, and thus installed in the operational environment.
- CANCELLATION OF ORDERS
- Cancellation of the order by the Customer before delivery, refusing the delivery or make it impossible to deliver a compensation of 15% will be charged.
- If Xpand terminates the agreement as a result of a breach, Xpand shall be entitled to retain the balance of any monies paid in advance by the Customer.
- A prepayment will be fully retained in case of cancellation or refusal of delivery.
- By canceling or refusing further delivery, Xpand may invoice the part that is already delivered and terminate the agreement. Automatically a compensation of 15% of the undelivered part will be charged.
- RIGHT OF USE
- The customer accepts – in function of the delivered software – the terms and conditions of the Software License Terms. To the extent it is not being dealt with in the applicable contract of the concerned software, the following provisions will apply.
- The Customer will only get a non-transferable and non-exclusive right of use of the software (both standard and tailor-made).
- The right of use grants the customer the right to use the delivered software, including its documentation, on the designated or specified machines for the purpose of his business, internal usage only, and to take copies of the software. These copies will not be used by the customer, except to replace the original material when this can no longer be used. They are subject to, and can only be used according to the software license terms.
- For every machine the software is used on by the customer, a separate license is required (except if decided otherwise by the owner of the software). However, on a provisional basis and for a unique and maximum duration of 1 month, the customer can use the software on a backup machine (other hardware) when the specified machine is temporarily unavailable.
- The customer is not authorized to sell, rent or transfer the software or part thereof, or to use it for another purpose than his own use and business.
- If the customer, without prior written authorization of Xpand, transfers the whole or part of the software delivered in the framework of the contract to a third party, he will have to pay a lump sum to Xpand, calculated as follows (the highest of the following amounts): the amounts invoiced by Xpand for the performance of the contract, as well as the supplemental interventions, increased by 30%, or the price charged by Xpand (evidenced by contracts or tariffs), at the time of the breach, to other customers for similar licenses and/or services, also increased by 30%.
- The foregoing is exclusive of penalties or amounts that the customer potentially would have to pay because of breach of license contracts or proprietary rights of third parties.
- SERVICE DESK
- Support: provided the customer has paid the “Service Desk Subscription Fee”, Xpand will provide assistance in case of problems/questions related to the contracted software. This support can be requested by the customer via the Service Desk, every business day from Monday till Friday from 09:00 hr till 18:00 hr (CEST).
- The Service Desk Subscription Fee will be invoiced annually in advance. The amount depends on the contracted software. The price is stipulated in the Statement of Work document.
- The notification and treatment of support questions are subjects to certain procedures, which will be communicated by the Project Manager as soon as the contracted software will be transferred to the Service Desk.
- Enhancement Plan: provided the customer has paid the “Update/Maintenance Fee / Enhancement Plan Fee”, Xpand will make the versions released by the software producer in the framework of his update or maintenance service, available to the customer as from their release. All related services (e.g. installation, implementation, training, etc.) with respect to these versions are not included in the Enhancement Plan Fee.
- Should the customer request support services while not having paid the Service Desk Subscription Fee, resp. the Enhancement Plan Fee, Xpand will make an offer and support will only be delivered after approval thereof by the customer. The support will then be planned on a project basis.
- Provided the customer has paid the Service Desk Subscription Fee, he will be granted access to the Web-based Information Platform, which offers the possibility to log new notifications via the internet and to follow up and consult the past notifications. The access to this platform is for free and is offered as an additional service.
- Services not covered by the Service Desk Subscription Fee will be invoiced separately. These services are listed in the Statement of Work document.
- The upgrade guarantee offered in the Statement of Work is mandatory for the Customer and delivers more functionality and continuity towards the future.
- TERMINATION OF AGREEMENT
- By signing the Statement of Work document, the customer commits to the totality of the order.
- Xpand may terminate the agreement without any judicial intervention and with immediate effect if Customer fails to comply with a written notice in 4 weeks, in the following cases:
- If the Customer not properly or fully complies with its obligations to Xpand resulting the agreement, including payment of invoices by the due date.
- If the Customer fails to comply with these Terms and Conditions.
- If the Customer had provided misleading or false information and therefore endangered Xpand.
- Customer may terminate the agreement without any judicial intervention and with immediate effect if Xpand fails to comply with a written notice in 4 weeks, in the following cases:
- If Xpand not properly or fully complies with its obligations to the Customer resulting in the agreement.
- If Xpand fails to comply with these Terms and Conditions.
- If Xpand had provided misleading or false information and therefore endangered the Customer.
- Any (extra) judicial expenses taken by Xpand due to failure by the customer to fulfill his obligation will be charged to the Customer.
- Furthermore, if the Customer is in breach the Customer shall compensate Xpand all damages, including loss and loss of profits, with a minimum of 15% of the total value of the contract.
- Without prejudice to existing commitments of the Customer, Xpand maintains the right to terminate the agreement without judicial intervention, with immediate effect, and without notice, in the following cases:
- If the customer is declared bankrupt or filed for bankruptcy.
- If the Customer is unable to pay, with a temporary suspension of payment or when a judicial agreement is requested.
- If the Customer is not able to dispose its capital, unless the receiver of trustee acknowledges his obligations and debts of the estate.
- Without prejudice to existing commitments of Xpand, the Customer maintains the right to terminate the agreement without judicial intervention, with immediate effect and without notice, in the following cases:
- If Xpand is declared bankrupt of filed for bankruptcy.
- If Xpand is not able to dispose its capital, unless the receiver of trustee acknowledges his obligations and debts of the estate.
- The “Service Desk Subscription” and “Enhancement Plan” agreements have a duration of one (1) year starting at the signature of the Statement of Work document, and is tacitly renewed with one (1) year periods unless a party terminates the contract by registered letter at the latest three (3) months before the end of the current period.
- LIABILITY – COMPLAINTS
- Xpand guarantees that the products and services conform the specifications and requirements of the Customer. But because of the inherent technical complexity of computer technology, Xpand cannot guarantee that its use completely runs without any problem. Xpand commits to fulfill at best effort to deliver error free solutions, and to avoid and solve problems if necessary. These achievements can never be subject to the result.
- In case the delivery didn’t expressly and explicitly take place, his complaints of visible defects of non-compliance of the delivery are registered written within 3 days to Xpand and when the delivered hasn’t undergone no manipulation including commissioning.
- Complaints of hidden defects will be accepted if not registered within 14 days, without prejudice to art. 1648 B.W. Liability for hidden defects is limited to a period of 6 months from delivery.
- When Xpand acts as a seller of hardware and software that isn’t developed by itself, the guarantees and the guaranteed period is limited to those provided by the manufacturer of the goods issued. Xpand cannot be held responsible for defects in the supplied hardware or software, nor for the direct or indirect damage caused by these defects.
- Xpand cannot be held responsible for direct or indirect damages by interruptions, delays, disturbances, lost data or any other problem as a result of the use of its products and services. More specifically; Xpand cannot be held responsible for general costs, increases, loss of profits, loss of customers that may arise.
- Unless otherwise written, Xpand will not assume any responsibility for its products and services delivered by the Customer after any change of nature, structure or composition made to the delivered, repairs by the Customer or third and lend or sell the delivered to third.
- In no case, the responsibility of Xpand severe more than the invoice value of goods and services. Xpand reserves the right, in the event of justified complaints either to replace the products or services or to refund the invoice value.
- In the event of force majeure and other circumstances of such nature that performance of an agreement is impossible for both parties or cannot reasonably be required of both parties, we have the right to suspend performance of the service to be provided by us as a whole or in part for a period to be determined by us or to dissolve the agreement as a whole or in part, without us being liable to pay the customer any compensation. If in such a case partial performance of an order takes place, the customer shall owe a proportional part of the total purchase price. Force majeure and circumstances as referred to in article 6.1 shall for example and in any event mean: war, threat of war, mobilisation, natural disasters, import/export or transit bans, shortage of energy, orders by the authorities, strike action, labour unrest, sickness, transport problems and the circumstance that we – for whatever reason – are denied the opportunity to supply by our own supplier and negligence on our part, not being gross negligence of the Board and/or including managers.
- The customer shall indemnify Xpand from any claim of third parties.
- Any defects in a part of the delivery shall not give the Customer the right to refuse the delivery.
- The lodging of complaints does not discharge the customer from the obligation to make payments in accordance with the invoice sent to it.
- INTELLECTUAL PROPERTY RIGHTS
- Unless otherwise written, the software is supplied under a contract, the property of Xpand of whom obtained the right to distribute software licenses of a third party. The data referred to in this article, and the trademark, patent, trade name, model, copyright or any other right to these data, do not pass to the customer, unless otherwise expressly agreed.
- Unless otherwise agreed, Xpand is entitled to show all works and services to third parties not provided confidential information.
- Xpand is entitled to use the knowledge for other purposes if no confidential information is provided to third parties.
- Unless otherwise written, Xpand is entitled to refer to the Customer to his website or other leaflets.
- GENERAL
- All information about the Customer or Xpand, exchanged via or on the basis of a Statement of Work document or within the framework of the contract, will be considered by the other party as confidential information and not disclosed to third parties. If necessary, procedures will be drafted and the necessary obligations will be imposed on the personnel.
- The customer will refrain from hiring, directly or indirectly, (former) employees of Xpand during the term of the contract and for a period of two years after the end of the contract. The customer will not, directly or indirectly, award contracts to these people. In case of breach of this clause, the customer will pay to Xpand an indemnity equal to 24 times the last gross monthly salary of that (former) employee, as paid by Xpand.
- Xpand has the right, provided he informs the customer, to mention the system of the customer and to use the name of the customer in his leaflets and publicity.
- All agreements concluded with Xpand are subject to the Ukrainian law.