Article 1 Definitions
In these General Terms and Conditions, the following terms have the following meanings:
a) QX-Innovations: Keurentjes B.V., trading as QX-Innovations, registered at Van Hovengaarde 23, 5673 AG Nuenen, the Netherlands, Chamber of Commerce (KvK) number 17183916;
b) Licensee: the counterparty of QX-Innovations, acting in the course of a profession or business (business-to-business);
c) Agreement: any agreement between QX-Innovations and Licensee, including a (Standard) Agreement, under which QX-Innovations supplies Products and/or Services;
d) Standard Agreement: an Agreement entered into on the basis of the standard terms and rates applied by QX-Innovations, as is generally the case with a Subscription;
e) Products: all software, systems, Hardware and other items supplied or made available by QX-Innovations to Licensee, including Custom Software;
f) Services: all activities performed by QX-Innovations, including support, consultancy, advice and the development of Custom Software;
g) Subscription: an Agreement under which Licensee is given ongoing access to certain Products and/or Services in exchange for a periodic fee;
h) Custom Software: software developed by QX-Innovations specifically at the request of, and based on the specifications of, Licensee;
i) Hardware: physical equipment supplied by QX-Innovations to Licensee, including till/POS systems, kiosks, pin terminals and related peripheral equipment, regardless of whether it was manufactured by QX-Innovations itself;
j) Source Code: the software in the form in which it is readable and editable by a developer, prior to translation into executable (machine-readable) code;
k) Access Credentials: all login details, passwords, certificates or other means by which access to the Products is obtained;
l) In writing: by letter, but also by e-mail or via another electronic means of communication, provided the content thereof is sufficiently determinable and traceable to the sender;
m) Working Days: Monday to Friday, excluding public holidays generally recognised in the Netherlands.
Article 2 Applicability
2.1 These General Terms and Conditions apply to, and form part of, all offers, quotations, assignments, order confirmations, agreements, deliveries and all other legal acts between QX-Innovations and Licensee.
2.2 Deviation from these General Terms and Conditions is possible by mutual agreement, but only applies if such agreement has been recorded in writing. Any other term that has not been explicitly accepted by QX-Innovations in writing has no effect.
2.3 The applicability of any purchasing or other terms of third parties or of Licensee is explicitly rejected and does not bind QX-Innovations, unless and to the extent that these have been expressly accepted by QX-Innovations in writing.
Article 3 Formation and performance of agreements
3.1 All offers and quotations of QX-Innovations, in whatever form, are without obligation, unless expressly stated otherwise, and offers remain open for acceptance for a period of fourteen (14) days, unless explicitly and in writing stated otherwise.
3.2 QX-Innovations is only bound by offers or quotations if Licensee's acceptance thereof is confirmed in writing within fourteen (14) days, unless indicated otherwise.
3.3 QX-Innovations expressly reserves the right to make changes to quotations and offers prior to the formation of the Standard Agreement, or to withdraw these at any time.
3.4 Quotations issued and offers made by QX-Innovations do not automatically apply correspondingly to future assignments.
3.5 An agreement is only formed if (i) an offer made (in writing) by QX-Innovations is accepted by Licensee within the period set for that purpose, or (ii) an order or offer made by Licensee is accepted by QX-Innovations. The obligations and arrangements recorded in an agreement with QX-Innovations replace any earlier oral and written arrangements.
3.6 A composite price quotation does not oblige QX-Innovations to perform part of the assignment against a corresponding part of the quoted price.
3.7 If and insofar as the proper performance of the (Standard) Agreement so requires, QX-Innovations is entitled to have work carried out by third parties.
Article 4 Price
4.1 If QX-Innovations issues a quotation or makes an offer containing an estimate of the hours and costs to be incurred, QX-Innovations is obliged to prepare that estimate to the best of its knowledge and ability.
4.2 The prices stated in quotations are exclusive of VAT and other government levies, as well as any costs to be incurred in connection with the (Standard) Agreement, including shipping and administration costs, unless stated otherwise.
4.3 QX-Innovations is entitled to increase the quoted prices if the circumstances under which the Standard Agreement is performed deviate from or have changed (for example, urgency), the work commissioned has changed (for example, additional work), or charging the quoted price would result in an unexpected and unreasonable relationship between the price and the work (to be) performed. QX-Innovations will notify Licensee of this. Such a price increase does not entitle Licensee to dissolve the (Standard) Agreement.
Article 5 Payment
5.1 Unless explicitly agreed otherwise in writing, payment by Licensee must be made within fourteen (14) days of the invoice date to a bank account designated by QX-Innovations.
5.2 Licensee must pay the set-up costs stated in the Quotation no later than fourteen (14) days after signing the Quotation. QX-Innovations will only proceed with installing and configuring the Products after Licensee has paid the set-up costs.
5.3 Licensee never has the right to suspend its payment obligations. Setting off against any claim against QX-Innovations is likewise not permitted.
5.4 If Licensee fails to meet its payment obligations within the payment period set, QX-Innovations is free to dissolve the Standard Agreement, in whole or in part, without judicial intervention, with or without retroactive effect, without being liable for any damages.
5.5 If Licensee does not meet its payment obligations on time, Licensee owes, without further notice of default, interest on all amounts not paid by the last day of the payment period, from that day onward, equal to the statutory interest rate for commercial transactions then applicable in the Netherlands under Section 6:119a of the Dutch Civil Code. This interest is owed from the day the payment period has expired until the day of full payment, without further notice of default being required, and without prejudice to all rights of QX-Innovations, including the right to recover extrajudicial collection costs from Licensee in addition to any judicial costs relating to the claim.
5.6 Payments are first applied to extrajudicial and judicial costs, then to interest, and only thereafter to repayment of the principal amount, always applied first to the oldest invoice.
5.7 For Subscriptions and Custom Software, the additional payment provisions of article 16.2 and article 17.2 respectively apply, which take precedence over paragraph 5.1 to the extent they deviate from it.
Article 6 Retention of title and right of pledge
6.1 After delivery, QX-Innovations remains the owner of the Products delivered, unless otherwise provided in the (Standard) Agreement. If this provision is explicitly deviated from in the (Standard) Agreement, QX-Innovations remains the owner of the delivered Products until Licensee has paid the amount owed for these in full, including interest and costs. This retention of title also applies for as long as Licensee is, or will be, in default of performance of its obligations under these General Terms and Conditions and the (Standard) Agreement to which they apply, as well as for claims arising from non-performance of the (Standard) Agreement, such as damages, penalties, interest and costs. If QX-Innovations has performed work to be compensated on behalf of Licensee in connection with the (Standard) Agreement, the retention of title applies until Licensee has also paid these claims to QX-Innovations, including interest and costs.
6.2 For as long as delivered Products are subject to retention of title, Licensee may not pledge, encumber or alienate them, or grant any further right thereto to a third party, other than with the written consent of QX-Innovations.
6.3 If a third party seizes, or wishes to establish or assert rights on, the Products delivered under retention of title, Licensee is obliged to notify QX-Innovations of this without delay.
6.4 Licensee is obliged to insure, and keep insured, the items delivered under retention of title against fire, explosion and water damage, as well as theft, and to provide the policy of this insurance for inspection upon first request.
6.5 Licensee hereby grants, in advance, explicit unconditional and irrevocable permission to QX-Innovations or third parties designated by it to enter all places where the property of QX-Innovations is located and to take back those items, should QX-Innovations wish to exercise its ownership rights.
Article 7 Access to and use of the Products
7.1 In all cases, Licensee will use the Payment Service Provider designated by QX-Innovations for the Products, unless QX-Innovations and Licensee have agreed otherwise in writing, for example because the Payment Service Provider designated by QX-Innovations cannot be offered at Licensee's location.
7.2 If a till/POS system is required to use the Products, Licensee is responsible for using a till/POS system that is compatible with the Products. Licensee will inform QX-Innovations in advance of the till/POS system it uses at the time the quotation is requested. QX-Innovations will inform Licensee, prior to concluding the (Standard) Agreement, whether Licensee's till/POS system is compatible with the Products. If Licensee's till/POS system is not, or not sufficiently, compatible with the Products, QX-Innovations will advise Licensee to switch to a till/POS system that is, or is sufficiently, compatible with the Products. If Licensee fails to inform QX-Innovations, or fails to do so in time, about the till/POS system it uses, or if Licensee, against the advice of QX-Innovations, wishes to connect the Products to a till/POS system that is not, or not sufficiently, compatible with the Products, this is at Licensee's own expense and risk.
7.3 Licensee is responsible for any use of the Access Credentials made available to it. Licensee will exercise the required care regarding the use of the Access Credentials and keep these confidential, not making them available to third parties.
7.4 The Access Credentials provided are non-transferable, strictly personal, and must be used exclusively within Licensee's organisation.
7.5 QX-Innovations may change the Access Credentials at its own discretion. QX-Innovations will notify Licensee of such changes in good time in that case.
7.6 Licensee will notify QX-Innovations without delay if the Access Credentials are being, or have been, used without authorisation, or if Licensee reasonably suspects this to be the case.
7.7 QX-Innovations has the right to block the Access Credentials on its own initiative, or may request Licensee to block the Access Credentials, if QX-Innovations is aware of unauthorised use of the Access Credentials.
7.8 When using the Products, Licensee must, insofar as relevant, observe the following rules at all times:
a) Licensee will not send unsolicited large volumes of messages with identical or similar content (spam);
b) Licensee will not misuse the Access Credentials or breach, or attempt to breach, the security of the Products;
c) Licensee will not perform or omit any act which it knows, or reasonably should have known, could lead to use of the Products that is punishable by law or unlawful towards QX-Innovations and/or third parties;
d) Licensee will not publish or distribute racist or discriminatory material and/or (child) pornography;
e) Licensee will not deliberately and without authorisation, and against the will of the owner or administrator, gain access to a computer system or part thereof (hacking);
f) Licensee will in no way infringe the Intellectual Property Rights of QX-Innovations and/or third parties;
g) If data stored, processed or otherwise entered using the Products is unlawful towards third parties, QX-Innovations is entitled to remove and destroy this data immediately, without prior notice. Licensee hereby grants permission, in advance, to QX-Innovations to remove and destroy all unlawful and infringing data. QX-Innovations will under no circumstances be liable for any damage, of whatever nature, resulting from the removal and destruction of this data;
h) QX-Innovations may block access to the Products by disabling the Access Credentials or suspending its services if QX-Innovations has a reasonable suspicion that the Products are being used in violation of these General Terms and Conditions or the (Standard) Agreement. Licensee's obligation to pay QX-Innovations continues to apply during any such suspension.
Article 8 Delivery, delivery times and complaints
8.1 The delivery time is stated for each separate order in the quotation issued by QX-Innovations and is solely a target date, based on the working conditions applicable at the time the (Standard) Agreement was concluded and on timely delivery of the Products. The agreed delivery times, and the delivery times stated in quotations, do not bind QX-Innovations.
8.2 Except in the event of intent or deliberate recklessness on the part of QX-Innovations, exceeding the delivery time, for whatever reason, does not entitle Licensee to:
a. compensation for direct or indirect damage;
b. compensation of any costs whatsoever;
c. dissolution of the Standard Agreement;
d. non-performance of any obligation that may arise for it from the Standard Agreement; and/or
e. performing or having performed, with or without judicial authorisation, work in execution of the Standard Agreement.
8.3 Delivery has taken place when the Products have been delivered at the agreed place of delivery, or the Products or Services have been made (online) accessible or available to Licensee.
8.4 Licensee must report complaints, including all grievances relating to non-conformity of delivered Products or Services and complaints about invoices, to QX-Innovations in writing within ten (10) Working Days of delivery thereof. After this period, Licensee loses the right to object to this. This does not affect the warranty provisions of article 18 (Hardware and warranty) and the acceptance procedure of article 17.4 (Custom Software).
Article 9 Liability and risk
9.1 QX-Innovations strives for the greatest possible availability and usability of the Products and Services. However, QX-Innovations does not guarantee that the Products and Services will function flawlessly, or otherwise without interruption, at all times.
9.2 QX-Innovations is not liable for defects and/or shortcomings in delivered Products and/or Services, regardless of whether the Products or Services were supplied by QX-Innovations itself or, on behalf of QX-Innovations, by a third party, except for defects/shortcomings arising from intent or deliberate recklessness on the part of QX-Innovations, and without prejudice to the provisions of article 18 (Hardware and warranty) and article 17.5 (warranty on Custom Software).
9.3 QX-Innovations will under no circumstances and in no way be liable for indirect and/or consequential damage, including pure financial loss, lost savings, damage due to business interruption and/or loss of profit, or damage due to Products and/or Services not being delivered on time and/or not being available.
9.4 QX-Innovations is in any event not liable for consequential damage, including loss of turnover, resulting from the Products and/or Services not functioning correctly or completely, regardless of whether the Products or Services were supplied by QX-Innovations itself or, on behalf of QX-Innovations, by a third party, except for defects/shortcomings arising from intent or deliberate recklessness on the part of QX-Innovations.
9.5 QX-Innovations is not liable for damage, of whatever nature, resulting from equipment, software, infrastructure, other systems, the internet and/or fixed and mobile telephone services and networks of Licensee not functioning on time, correctly or completely, including but not limited to disruptions at third parties such as banks and other payment providers, or at internet and telephony providers.
9.6 QX-Innovations is not liable for damage to Licensee and/or third parties, of whatever nature, resulting from the incompatibility or insufficient compatibility of Licensee's till/POS system or other external hardware or software with the Products.
9.7 QX-Innovations is not liable for damage to Licensee and/or third parties, of whatever nature, arising because QX-Innovations relied on incorrect and/or incomplete information provided by Licensee.
9.8 QX-Innovations is not liable for damage to Licensee and/or third parties, of whatever nature, resulting from incorrect or unauthorised use of the Access Credentials or the blocking (or having blocked) of the Access Credentials, if the Access Credentials are being or have been used without authorisation.
9.9 Licensee is itself responsible for correctly and completely entering, or making accessible, data such as product information, ingredients and prices in the Products. QX-Innovations is in no way liable for damage, of whatever nature, resulting from Licensee's failure to enter data into the Products, or entering it incorrectly.
9.10 The liability of QX-Innovations towards Licensee for damage caused by breach of contract and/or a tortious act by QX-Innovations is in any event limited to a maximum of the amount paid out by its insurer under the liability insurance taken out by QX-Innovations.
9.11 In any event, the liability of QX-Innovations is limited to a maximum amount equal to the subscription fees for the agreed Products and/or Services that gave rise to the damage (excluding VAT). In the case of an assignment with a term of more than twelve (12) months, this is limited to the monetary value of one year's subscription as stated in the Quotation.
9.12 The risk for the Products passes to Licensee from the moment the Products are delivered to Licensee.
9.13 In the event Licensee fails to comply with the provisions of these General Terms and Conditions, Licensee will indemnify QX-Innovations against potential claims from third parties and damage resulting from failure to comply with the General Terms and Conditions.
Article 10 Term and termination
10.1 Agreements concluded between QX-Innovations and Licensee are entered into for a term of one (1) year, unless otherwise agreed. After this period, the agreement is automatically renewed each time for a period of one (1) year.
10.2 Unless explicitly agreed otherwise in writing, either party may terminate the (Standard) Agreement in writing at any time, observing a notice period of three (3) months and without being liable for any damages. In that case, Licensee remains obliged to pay the invoices for Products and/or Services delivered up to the moment of termination.
10.3 If QX-Innovations has made items available to Licensee in the performance of the (Standard) Agreement and this (Standard) Agreement comes to an end, Licensee is obliged to return the items supplied to QX-Innovations within fourteen (14) days, in their original condition, free of defects and complete. If Licensee fails to comply with this obligation, QX-Innovations is entitled to recover the resulting damage and costs from Licensee.
Article 11 Suspension and dissolution
11.1 QX-Innovations is entitled to terminate or suspend performance of the obligations arising from the (Standard) Agreement and these General Terms and Conditions if Licensee fails to comply with an obligation arising from the (Standard) Agreement or these General Terms and Conditions, or if QX-Innovations has reason to believe that Licensee will not be able to comply with its obligations. In that case, QX-Innovations will never be liable for the consequences that may result from this.
11.2 If, after the formation of a (Standard) Agreement, it becomes apparent that performance has become onerous or impossible for QX-Innovations due to force majeure, QX-Innovations is entitled, at its own discretion, to dissolve the performance of the (Standard) Agreement, insofar as it still requires performance, or to suspend such performance, in which case Licensee will be notified as soon as possible, taking into account the circumstances of the case.
11.3 QX-Innovations is entitled to dissolve the (Standard) Agreement concluded between it and Licensee with immediate effect, without judicial intervention, if Licensee fails, or fails in time or properly, to comply with its payment obligations and Licensee has been given the opportunity to pay the outstanding amount within fourteen (14) days. In that case, Licensee is obliged to compensate the costs incurred by QX-Innovations up to that point, amounts advanced, and the fee owed at that time, without prejudice to QX-Innovations' right to compensation for damages.
11.4 QX-Innovations is entitled to dissolve the (Standard) Agreement, in whole or in part, with immediate effect in the event of bankruptcy or suspension of payment of Licensee, as well as in the event of the closure or liquidation of Licensee's business.
Article 12 Force majeure
12.1 QX-Innovations is not obliged to comply with its obligations under the (Standard) Agreement if it is prevented from doing so as a result of force majeure.
12.2 Force majeure, for the purposes of these General Terms and Conditions, means any circumstance beyond the control of QX-Innovations, even if foreseeable at the time the (Standard) Agreement was formed, which permanently or temporarily prevents performance of the (Standard) Agreement and which entails that (further) performance of the (Standard) Agreement cannot reasonably be required of QX-Innovations. Such a shortcoming exists if it is not attributable to QX-Innovations' fault, nor is for its account by virtue of law, legal act or generally accepted standards, including but not limited to natural disasters, epidemic diseases, war, threat of war, civil war, international or national armed conflicts and preparations therefor, riots, strikes, lock-outs, transport difficulties, including traffic congestion, failure of utility services, fire, government measures (whether of the Dutch government or of a foreign government, including the United States), trade or export restrictions, sanctions, or the complete or partial failure, inaccessibility, discontinuation or disabling of services of foreign suppliers used by QX-Innovations for the Products and/or Services (including cloud, hosting or other IT service providers), or other serious disruptions in the business of QX-Innovations or its suppliers.
12.3 Unforeseen circumstances relating to the availability of persons and/or Products and/or materials used by QX-Innovations in performing the (Standard) Agreement, as a result of which performance becomes impossible, so onerous and/or disproportionately costly that prompt compliance with the (Standard) Agreement cannot reasonably be required of QX-Innovations, are treated equally to force majeure.
12.4 QX-Innovations also has the right to invoke force majeure if the circumstance preventing (further) performance arises after QX-Innovations should have fulfilled its obligation.
12.5 If QX-Innovations has already partially fulfilled its obligations at the time the force majeure situation arises, it is entitled to invoice the Products already delivered and/or Services (partially) performed separately, and Licensee is obliged to pay this invoice as if it concerned a separate transaction. Licensee may then claim the Products already produced by QX-Innovations (partial deliveries), to the extent available.
12.6 QX-Innovations partly relies on services of foreign parties for the Products and Services, including suppliers of cloud, hosting or other IT services established in the United States. If a (foreign) government takes measures, including sanctions, export restrictions or other government intervention, as a result of which such services are wholly or partly no longer supplied to QX-Innovations or to parties established in the Netherlands, this likewise qualifies as force majeure within the meaning of this article. In such a case, QX-Innovations will make efforts, insofar as reasonably possible, to switch to a comparable alternative, without being obliged to do so.
Article 13 Intellectual property
13.1 Unless agreed otherwise in writing, QX-Innovations retains all intellectual property rights to the offers it has made, and to Products and Services provided or delivered, designs, images, drawings, (test) models, programs, software, calculations, etc., including calculation tools, designs, diagrams, images, drawings, (test) models, whether or not included in catalogues, from which no rights can be derived. These intellectual property rights also include the Source Code.
13.2 Unless agreed otherwise, once all amounts owed by Licensee to QX-Innovations have been paid, QX-Innovations grants Licensee a licence to use and publish the Products as described in the order confirmation. Without the consent of QX-Innovations, Licensee is not entitled to modify the Products or use them in modified form. Licensee is not given access to any source code and is not entitled to publish or reproduce it.
13.3 Licensee is not permitted to (have) register(ed) Products of QX-Innovations as a trademark, design or patent without the prior written consent of QX-Innovations.
13.4 Licensee indemnifies QX-Innovations against any claim by third parties relating to the use of materials or data provided by or on behalf of Licensee that are used in the performance of the Standard Agreement.
13.5 If Licensee provides QX-Innovations with data carriers, electronic files or software, etc., Licensee guarantees that this does not infringe the rights of third parties, and that the data carriers, electronic files or software are free of viruses and defects.
13.6 With regard to Custom Software, in addition to paragraph 13.1, the copyrights and other intellectual property rights to the Source Code of the Custom Software in principle remain vested in QX-Innovations, even if its development was fully financed by Licensee. QX-Innovations informs Licensee of this when entering into the Agreement. This enables QX-Innovations to continue to provide maintenance and further development of the Custom Software.
13.7 If Licensee wishes to obtain the intellectual property rights to the Source Code of the Custom Software, this can only be agreed in writing, for example through: (a) a secondment arrangement, whereby the QX-Innovations employee(s) involved carry out work under Licensee's direction, with the intended result that authorship within the meaning of the Dutch Copyright Act (Auteurswet) vests in Licensee; or (b) a buy-out of the intellectual property rights, whereby these rights are transferred to Licensee against a separately agreed (generally higher) rate. The conditions of such an arrangement are recorded in writing in advance for each project.
13.8 To the extent a deed is required for a valid transfer of copyright under Section 2(2) of the Dutch Copyright Act (Auteurswet), the parties will in all cases record the transfer in writing in the Agreement or in a separate deed.
Article 14 Applicable law and competent court
14.1 Dutch law exclusively applies to all agreements concluded between QX-Innovations and Licensee.
14.2 The Dutch court in the district in which QX-Innovations is established (Rechtbank Oost-Brabant, location 's-Hertogenbosch) has exclusive jurisdiction to hear any disputes between the parties, unless the law mandatorily prescribes otherwise.
Article 15 Amendments to the General Terms and Conditions
15.1 QX-Innovations is entitled to amend these General Terms and Conditions. QX-Innovations will send the amended General Terms and Conditions to the counterparty in good time. Any amendments take effect on the announced effective date. If no effective date has been communicated, amendments take effect as soon as the amendment has been communicated to Licensee.
Article 16 Additional provisions for SaaS and subscriptions
16.1 This article applies to the extent QX-Innovations supplies Products and/or Services on the basis of a Subscription, in addition to the other articles of these General Terms and Conditions.
16.2 In deviation from article 5.1, the Subscription fee is always invoiced prior to the period to which it relates, and must be paid before the start of that period, unless agreed otherwise in writing.
16.3 Article 10.1 (term and automatic renewal) applies correspondingly to the Subscription. If the Subscription has been entered into for a period other than one (1) year, for example per month, the Subscription, if not terminated in time observing the notice period of article 10.2, is automatically renewed each time for the same period after expiry of the agreed period.
16.4 Licensee will use the Products in a normal manner consistent with the purpose of the Subscription (fair use). In the event of use that considerably exceeds the customary scope of comparable subscriptions, QX-Innovations will consult with Licensee regarding an appropriate additional fee or a use restriction.
16.5 QX-Innovations makes efforts to achieve the highest possible availability of the Products (best-efforts obligation), without guaranteeing a specific availability percentage, unless the parties have agreed a Service Level Agreement with concrete availability commitments in writing.
16.6 Data that Licensee enters or has processed via the Subscription remains the property of Licensee. This does not affect the intellectual property rights of QX-Innovations to the underlying Products (article 13).
16.7 To the extent QX-Innovations processes personal data on behalf of Licensee in connection with the Subscription, the data processing agreement in force between the parties applies. In the event of a conflict between these General Terms and Conditions and the data processing agreement, the data processing agreement prevails insofar as it concerns the processing of personal data.
Article 17 Additional provisions for custom software
17.1 This article applies to the extent QX-Innovations develops Custom Software at the request of Licensee, in addition to the other articles of these General Terms and Conditions.
17.2 Unless agreed otherwise in writing, payment for Custom Software takes place as follows:
a) for a Custom Software project with an agreed duration of up to approximately three (3) months: fifty percent (50%) of the project price upon order confirmation, forty percent (40%) upon delivery of the Custom Software, and ten percent (10%) after acceptance of the Custom Software in accordance with paragraph 17.4. Licensee may withhold this final ten percent (10%) for up to one (1) month after delivery; after this period, this amount becomes due regardless, unless Licensee has reported defects within that period which QX-Innovations has not properly attempted to remedy;
b) for a longer-running Custom Software project or ongoing services (including secondment) exceeding approximately three (3) months: monthly invoicing in arrears based on the hours actually spent.
17.3 If it becomes apparent during performance that the agreed work requires more time or costs than budgeted, for example due to a change in specifications by Licensee, QX-Innovations will inform Licensee of this prior to carrying out the additional work. Additional work is carried out and invoiced after Licensee's consent, unless urgency does not allow for this.
17.4 After delivery of the Custom Software, Licensee has ten (10) Working Days to test it and report in writing whether the Custom Software is accepted, or which defects stand in the way of acceptance. If Licensee does not respond within this period, the Custom Software is deemed accepted. Reported defects that materially impede the agreed use are remedied by QX-Innovations within a reasonable period, after which the test is repeated. Minor, non-material defects do not stand in the way of acceptance.
17.5 For thirty (30) days after acceptance of the Custom Software, QX-Innovations will remedy, free of charge, defects that are demonstrably the result of an error in the Source Code delivered by QX-Innovations, provided these are reported in writing within that period. This warranty does not apply to defects resulting from changes not made by QX-Innovations, improper use, or use in combination with equipment or software not approved by QX-Innovations.
17.6 The intellectual property rights to the Custom Software are governed by articles 13.6 to 13.8.
Article 18 Additional provisions for hardware and warranty
18.1 This article applies to the supply of Hardware by QX-Innovations, in addition to the other articles of these General Terms and Conditions. QX-Innovations acts as a reseller in the supply of Hardware; the Hardware is not manufactured by QX-Innovations itself.
18.2 Unless agreed otherwise below or in writing, a warranty period of twelve (12) months from delivery applies to the Hardware, in accordance with the warranty that the manufacturer or supplier of QX-Innovations standardly offers to business customers.
18.3 If Hardware shows a defect within the warranty period that is not covered by the exclusions of paragraph 18.6, QX-Innovations will repair or replace the relevant Hardware free of charge. This free warranty covers the device or component itself and, for Hardware exchanged by post (including till/POS systems), the shipping costs from QX-Innovations to Licensee. The costs of shipping from Licensee to QX-Innovations are for Licensee's account.
18.4 To the extent repair or replacement of Hardware requires work on-site at Licensee's premises (for example, installing a new screen in a kiosk), the labour and call-out costs thereof are not included in the free warranty of paragraph 18.3. These costs are charged separately to Licensee at the rates applicable at QX-Innovations at that time, unless Licensee has an extended warranty with on-site service as referred to in paragraph 18.7.
18.5 If the warranty period has expired, the costs of repair or replacement Hardware, shipping costs, and the related work (including collecting and reinstalling the Hardware), are for Licensee's account, at the rates applicable at QX-Innovations at that time.
18.6 The warranty in any event excludes defects resulting from normal wear and tear, incorrect use, use contrary to the instructions for use, external causes (such as damage from a fall, water or lightning strike), or repairs or modifications not carried out by or on behalf of QX-Innovations.
18.7 For certain Hardware, including kiosks, Licensee may, against an additional fee, take out an extended warranty with a longer term of up to five (5) years, including on-site service (in which case the labour and call-out costs referred to in paragraph 18.4 are included) and exchange of defective equipment. The conditions and price of such an extended warranty are recorded in writing when it is entered into, for example in the quotation or Agreement.
18.8 The provisions of this article do not affect the retention-of-title and risk provisions of article 6 and article 9.12.
Article 19 Additional provisions for consultancy and advisory services
19.1 This article applies to the extent QX-Innovations performs advisory, architecture or other consultancy work, in addition to the other articles of these General Terms and Conditions.
19.2 In performing such work, QX-Innovations commits to a best-efforts obligation and not to an obligation to achieve a result, unless the parties have expressly agreed a result in writing.
19.3 Consultancy work is invoiced on an hourly basis at the agreed rate, in principle monthly in arrears based on the hours actually spent, unless agreed otherwise in writing.
19.4 The parties will keep confidential all confidential information they receive from each other in connection with the consultancy work, and will not disclose it to third parties, unless this is necessary for the performance of the Agreement or a legal obligation to do so exists.