General terms and conditions

These General Terms and Conditions or Terms of Use (hereafter the “Terms” or the “Agreement”) cover the use and access by every user (whether an individual user or an organisation) (hereafter a “User”) of the Scappman platform (hereafter the “Platform”) provided by Xplendit B.V. (hereafter “Scappman” or “we” or “us”). The Scappman Platform is a software-based platform that enables Users to install and automatically update applications onto their devices and that provides reporting on such applications.

 

CERTAIN DEFINITIONS:  As used in these Terms, the following terms shall have the meanings set forth below.  Capitalised terms used and not defined herein shall have the meanings given them elsewhere in these Terms.

 

“Agreement” or “Terms” shall mean these general terms and conditions.

“License” shall mean the license to the Platform and its underlying software as described in article 1 of these Terms.

“Fees” shall mean the monthly fees to be paid by the User for the Platform, the License or the Services as described in article 2 of these Terms.

“Party” or “Parties” shall mean Scappman and the User(s).

“Platform” shall mean the Scappman software-based platform offered by Scappman to the User(s).

“Service” shall mean additional services rendered by Scappman as might be agreed upon by the Parties.

“Scappman” shall mean Xplendit B.V., with tradename Scappman, a company registered with the Belgian Crossroads Bank for Enterprises under the enterprise number 0745.706.009, with its registered address at Bunderbeeklaan 28, 2950 Kapellen, Belgium.

“User” or “you” shall mean the individual user or organisation that effectively accesses and uses the Platform (and the Services). Individual users are hereafter also referred to as “End-Users”. End-Users can either be “admin” Users or “co-admin” Users. Non-individual Users (hereafter also referred to as “Organisation-Users”) are organisations, companies, corporations or other entities that either employ or represent the End-Users or that serve as a reseller (hereafter a “Reseller”) for other Users.

 

AGREEMENT.  The Parties hereby agree as follows:

 

1.      LICENSE.  Subject to these Terms, Scappman provides a non-exclusive license to the User to access and use the Platform and its underlying software (the "License”) for the purpose of installing and updating applications on the computer equipment and other devices of the User. The User acknowledges that the grant of the License is subject to payment of the Fees (if the User is an individual End-User, then the License is subject to payment of the Fees by an Organisation-User).

 

The User does not have the right to transfer or assign the License, access rights to the Platform or the Services to other parties or to grant sublicenses to other parties. The User does not have the right to decompile, disassemble, "reverse-engineer" or otherwise (attempt to) derive the source code or the object code of the Platform or its underlying software. The User shall not use the Platform or the underlying source code or object code to develop, create or build software or applications for other platforms, systems, programs or services that may compete directly or indirectly with the Platform (including new developments to the Platform).

 

The User is responsible for providing all equipment, devices and licenses necessary for it to access and use the Platform or the Services, including its own specific licences for applications or software downloaded or installed through the Platform or the Services, its own computer equipment or other devices, and its own internet access. The User shall ensure that its equipment, devices and licences are fit for using the Platform and the Services and do not disturb or interfere with the operation of the Platform. If any update of the Platform requires changes in the User’s equipment, devices or software, the User must implement these changes at their own responsibility and expense.

 

2.      FEES AND BILLING.  The User will pay Scappman all fees for the License and the Services (if applicable) provided under this Agreement (as agreed upon during the registration process). The license fees will be calculated based on the number of assigned Microsoft 365 licenses of the User that include a Microsoft Intune entitlement (hereafter “Consumed Licenses”) and that are connected to our Platform. Scappman will track the number of Consumed Licenses by the User and will at the end of each month charge the average number of Consumed Licenses during that month.

 

All such fees are exclusive of sales taxes, valued added tax, and other federal, state, municipal, or other governmental taxes, charges, or levies now in force or enacted in the future, all of which the User will be responsible for and will pay in full, except as required by law. Upon termination of this Agreement for any reason, all pre-paid License(s), costs or services shall expire and no refund or pro-ration shall be made.

 

Unless otherwise specified during the registration process, Scappman shall issue its invoices monthly.  Monthly Fees are invoiced at the end of each month. At the effective start of the Agreement, the User will be invoiced for set-up fees (if applicable). All payments shall be made in the currency agreed upon during registration, are due upon receipt of the invoice and become past due if not paid within thirty (30) days of the invoice date (unless otherwise mentioned on the invoice). Payments not received when due will automatically and without notice accrue interest in accordance with Clause 5 of the Belgian Act of 2 August 2002 regarding the prevention of late payment in commercial transactions, as well as a lump sum indemnity as provided for in that Act of 10% of the amount that remained unpaid (with a minimum of 250 euros).    

 

In the event of non-payment or late payment of invoices, Scappman may suspend or restrict the License (in particular access to and use of the Platform) or the Services or terminate this Agreement and the User will owe Scappman compensation for damages suffered and costs incurred (including legal fees and attorneys' fees).

 

All prices, invoice and payment conditions are subject to change. Scappman will notify Users of such change in writing, six (6) months before the change is applied. If at the time of registration for the Platform a definite term was agreed upon, then prices can only be changed for the renewal term(s) and upon giving six (6) months’ prior written notice.

 

If the User becomes insolvent or enters into liquidation, or a petition in bankruptcy is filed concerning the User, or the User is declared bankrupt or has filed a voluntary petition for proceedings in temporary relief of creditors, Scappman may cease its License (in particular access to and use of the Platform) or Services towards the User and Scappman’s claims will become immediately due and payable.

 

3.      CONDUCT OF USERS (AND ITS END-USERS).  The User is solely responsible for its access and use of the Platform and the Services. The User agrees that it is solely responsible for all individual End-Users who access and/or use the Platform or the Services through the User’s account. If the User is a Reseller, then the Reseller agrees that it is solely responsible for all its connected Users and individual End-Users who access and/or use the Platform or the Services through the Reseller’s account.  Scappman reserves the right to take any action with respect to the Platform or the Services that it deems necessary or appropriate in its sole discretion if Scappman believes a User may create liability for Scappman, compromise or disrupt the Platform or the Services for other Users, or may cause Scappman to lose the services of its ISPs or other suppliers.

 

The User agrees: (a) to comply with all applicable laws (including Belgian law) regarding the Platform/Services; and (b) not to use the Platform/Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity, privacy or data protection.

 

4.      CONFIDENTIAL INFORMATION. “Confidential Information” is that information which, regardless of form or method of disclosure, either Party specifically designates as confidential at the time of disclosure; and any information, regardless of form or method of disclosure, customarily treated as confidential by a reasonable person. All information provided by the User to Scappman in connection with the activation of the License or the Services or any End-Users is Confidential Information of the User. All information with regard to the operation and pricing of the Platform, the Services or the License is Confidential Information of Scappman. Neither Party shall use Confidential Information of the other Party for any purpose other than for the purpose of providing or using the License, Platform or Services or as otherwise expressly permitted in these Terms. Each Party shall refrain from disclosing, and shall prevent its employees, agents and partners from disclosing, any Confidential Information of the other Party. If a Party is compelled to disclose Confidential Information under the authority of a court or governmental agency, the compelled Party shall promptly notify the other Party.

 

5.      INTELLECTUAL PROPERTY RIGHTS. All intellectual property rights (such as but not limited to copyrights, database rights, patents, trademarks, trade names, logos, domain names and derivative rights) relating to the Platform (including new developments and including underlying software) or the Services (hereafter also the “Intellectual Property Rights” or the “IP Rights”) are and will remain the exclusive property of Scappman, worldwide. In other words, the User is granted a License to the Platform (and its underlying software) under article 1 of these Terms, but Scappman remains the owner of all IP Rights to the Platform (and its underlying software).

 

6.      REPRESENTATIONS AND WARRANTIES.

         a.      Representations and Warranties.  The User and Scappman represent and warrant to each other that: (i) they are duly organised and validly existing and have the legal power and authority to enter into this Agreement and to perform their obligations hereunder; (ii) the persons agreeing to this Agreement on behalf of the User and Scappman are duly authorised to do so, and upon its execution by such person, this Agreement is the valid and legally binding obligation of the User and Scappman; and (iii) the User’s use of the Platform, the Services or the License and Scappman’s supply thereof will not violate any applicable law or regulation.

         b.      No other warranty.  Scappman uses commercially reasonable efforts to develop the Platform (including updates) and the Service. Except for any express warranty set forth herein, the Platform, the Services and the License are provided on an “as is” and “as available” basis. Scappman expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose. Scappman makes no warranty that the Platform or the Services will be uninterrupted, timely, secure or error free. Scappman has no responsibility or liability for the deletion, corruption or failure to store any communication, messages or other content maintained or transmitted by the Platform or the Service. The Parties acknowledge that the security of transmissions over the internet cannot always be guaranteed and that Scappman will not be responsible for the User’s access to the internet, for any interception or interruption of any communications through the internet, or for changes to or losses of data through the internet. In order to protect the User, the User’s data, or other clients, Scappman may suspend the User’s use of the Platform, the Services or the License via the internet immediately, without notice, if any breach of security is suspected.

 

7.      LIMITATIONS OF LIABILITY AND INDEMNIFICATION.

         a. Third-party software. Any installation or download of third-party applications or software by the User through the Platform will be the sole responsibility of the User. The User will be solely responsible for complying with the terms and conditions governing such applications or software. In no event shall Scappman be responsible or liable for any applications or software downloaded or installed via the Platform. It will be the User’s sole responsibility to ensure that he/she has sufficient licenses or authorisation to download/install/use such third-party applications or software through the Platform. The User understands and confirms that Scappman will not be liable in case the User downloads, installs or uses applications or software via the Platform without sufficient licenses or authorisation.

         b. No liability for indirect and other damages. In no event will either Party be liable or responsible to the other for any type of incidental, punitive, special, indirect or consequential damages arising from or relating to this Agreement, including but not limited to lost revenue; lost profits; loss of business; loss of goodwill or reputation; replacement of goods or services; loss of data, communication or messages received or sent; business interruption; losses associated with transactions entered into or not entered into, even if advised of the possibility of such damages, whether arising under any theory of contract, tort (including negligence), strict liability or otherwise. Scappman will not be liable for any delays or failures in Service caused by a delay or failure in service by the User, a third party or suppliers, providers or contractors of Scappman. Scappman has no liability or responsibility for the deletion, loss or failure to store any of the User’s data.

         c. Liability for timely updates. If updates for third-party applications are made available by their owners/operators, Scappman will use commercially reasonable efforts to propose or provide such updates to its Users via the Platform within five (5) working days. Scappman will have no liability whatsoever for any damages (including damages caused by hacking) caused by outdated applications during this five (5) day period or caused by the User’s failure to install applicable updates in a timely manner.

         d. Certain examples of excluded liability. Scappman will not be liable if applications or software are deleted or made unavailable from/on the equipment or devices of the User. Scappman will not be liable if the User changes any access rights vis-à-vis Scappman or Resellers. Scappman will not be liable if the User changes any settings or configurations following which updates cannot be installed. Scappman will not be liable if Personal Data are made publicly available because of a data breach which is caused by the User or an End-User. Scappman will not be liable for mistakes, errors, breaches or other actions or lack of actions by Resellers.

         e. Indemnification. Scappman’s liability to the User or any third parties will in each case be limited to the amount paid by the User to Scappman under this Agreement during the three (3) month period immediately preceding the date the loss or damage first occurs.  

 

8.      DEFAULT AND REMEDIES.

 

         a.      Default by Scappman.  The occurrence of any of the following will be a “Default” by Scappman: (i) the material breach of any substantial obligation, representation or warranty made by Scappman in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by Scappman within thirty (30) days after receiving written notice from User of such breach; or (ii) Scappman’s insolvency or liquidation as a result of which it ceases to do business. 

         b.      Default by the User.  The occurrence of any of the following will be a “Default” by the User: (i) User fails to pay, when due, any amounts owing to Scappman hereunder; or (ii) the material breach of any substantial obligation, representation or warranty made by the User in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by the User within thirty (30) days after receiving written notice from Scappman of such breach; or (iii) the User’s insolvency or liquidation as a result of which the User ceases to do business.

         c.      User’s Remedies for Default by Scappman. If Scappman commits a Default, the User will be entitled, at its election, to terminate this Agreement or seek any available remedies at law.

         d.      Scappman’s Remedies for Default by the User. If the User commits a Default, Scappman will be entitled, at its election, to exercise any one or more of the following remedies, then or at any time thereafter: (i) to pursue any remedy available at law, (ii) to terminate this Agreement; and (iii) to suspend License or the Services.

 

9.      TERM AND TERMINATION.  The term of this Agreement will commence as from the User’s registration.

         a. Indefinite term. This Agreement will bind the Parties for an indefinite term unless the Parties have agreed upon a definite term during the registration for the Platform. If this Agreement is for an indefinite term, both Parties will have the right to terminate this Agreement upon giving one (1) month written notice to the other Party.

         b. Definite term. If at the time of registration, the Parties have agreed upon a specific definite term, then the Parties will be bound by this Agreement for such definite term (the “Initial Term”). After the end of the Initial Term, this Agreement shall automatically renew for new terms equal to the length of the Initial Term. The Parties agree that the Initial Term is a minimum term and that this Agreement cannot be terminated before the end of the Initial Term. Both Parties will have the right to terminate this Agreement, upon giving written notice. Such termination notice should be given at the latest three (3) months before the end of the Initial Term or the end any renewal term (in the absence of a timely notice of termination, the Agreement will be considered renewed). During the termination term, Scappman will continue to provide the License, the Platform and Services and the User will continue to pay the applicable fees. Upon termination of this Agreement, the User’s right to use the Platform (the License) and Services will cease.

         c. Trial period. Scappman may offer the possibility to Users to obtain a License for a limited trial period (the “Trial Period”), free of charge. Licenses for a Trial Period will be revocable at any time by both Parties and will always be limited to the purpose of testing the Platform. Such Licenses will end automatically at the end of the Trial Period.

         d. User’s obligation upon termination. Upon termination of this Agreement for any reason whatsoever, the User must uninstall and destroy all copies of the Platform and related documentation and shall confirm this in writing to Scappman.

 

10.    SECURITY, PRIVACY AND DATA PROTECTION

 

Any terms used in this section that are not defined have the meaning given to them by Regulation EU 2016/679 (“GDPR”) and the Belgian Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data (the “2018 Privacy Act”) (collectively the “Data Protection Laws”). The Parties acknowledge and agree that they shall comply with their obligations under applicable Data Protection Laws. Scappman acts as a Data Processor in respect of Personal Data provided by the User and processed by Scappman as part of this Agreement. Scappman shall process such Personal Data in accordance with the terms set out in this Agreement and a possible separate processing agreement. The User will be considered the Data Controller and acknowledges to be solely responsible for determining the purposes and the means of the Processing of the Personal Data by Scappman.

 

The Parties acknowledge that Scappman may process Personal Data for executing this Agreement or for legal obligations to which it is subject, for security purposes (i.e., to maintain or improve the security of the IT infrastructure of Users or to report on security), for quality reviews in relation to the User’s use of the Platform or the Services, for auditing purposes, and for Scappman’s internal financial accounting and billing purposes. Such Personal Data might include user names, email addresses, names of computers or other devices, information on software or applications installed or downloaded on computers/devices, etc. and might imply multiple Data Subjects linked to the User.

 

If and to the extent that Scappman processes Personal Data on the User's behalf in connection to this Agreement, Scappman shall: a) process the Personal Data only on documented instructions from the User, unless required to do so by applicable law; b) ensure that only required persons have access to Personal Data and that such persons have committed themselves to confidentiality or are under a statutory obligation of confidentiality; c) take all measures required pursuant to article 32 of GDPR for security of processing; d) respect the conditions referred to in paragraphs 2 and 4 of article 28 of GDPR for engaging a Sub-Processor; e) assist the User by implementing appropriate technical and organisational measures, insofar as possible, for the fulfilment of the User's obligation to respond to requests for exercising Data Subject's rights laid down in Chapter Ill of GDPR; f) assist the User in ensuring compliance with its obligations under articles 32 to 36 of GDPR; g) at the choice of the User, delete, anonymise or return all Personal Data to the User after the end of the provision of the License or the Services relating to processing, and delete existing copies unless applicable law requires further storage of Personal Data; h) immediately inform the User if, in Scappman’s opinion, an instruction of the User infringes Data Protection Laws.

 

The User warrants to Scappman that it is entitled to transfer Personal Data to Scappman for processing purposes, in compliance with applicable Data Protection Laws, including compliance to information and/or consent obligations. The User warrants in particular that it has obtained the prior authorisation of all individual End-Users for the processing of Personal Data by Scappman or the Reseller for the purposes of this Agreement, including data such as user names, email addresses, names of computers or other devices, information on software or applications installed or downloaded on computers/devices, etc. The User acknowledges and agrees that such Data can be accessed or processed by Scappman, by the Reseller (if applicable) and by the admin and co-admin contacts of the Organisation-User (the admin and co-admin contacts can manage the downloaded applications and software on the devices of the individual End-Users. The User / Organisation-User confirms and guarantees towards Scappman that all necessary authorisation has been obtained from the individual Data Subjects in this regard.

 

The User will be responsible to respond to Data Subjects’ requests under Data Protection Laws and Scappman will be responsible to assist the User to the extent required by Data Protection Laws.

 

The User will be solely responsible to ensure that End-Users keep their log-in data confidential and secure.

 

Scappman has the right to use sub-contractors (“Sub-Processors”) to perform the processing of Personal Data and warrants that all of its Sub-Processors will comply with the provisions of Chapter V of the GDPR.

 

11. OTHER PROVISIONS. 

 

a.      Assignment; no third-party rights.  Neither Party may assign or transfer this Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld.  However, a Party may assign this Agreement without the other Party’s written permission if such an assignment is to a parent or subsidiary, is in connection with a merger, or is in connection with the sale or transfer of all or part of such Party’s assets or business. Otherwise, this Agreement is for the sole benefit of the Parties, and nothing herein will be construed as giving any rights to any person not a party hereto.

b.      Independent contractors.  The Parties will have the status of independent contractors, and nothing in this Agreement will be deemed to place the Parties in any other relationship, including employer-employee, principal-agent, partners or joint ventures.

 c.      Non-waiver/severability.  Failure of either Party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights.  If any term of this Agreement is held to be invalid, the remainder of the Agreement will remain in force. 

d.      Use of the User’s name as reference. Scappman may include the User’s name, brand and logo for reference purposes towards other potential clients (including on websites, social media, portfolio’s, presentations, newsletters, mailings, etc.). The User may revoke this permission by notifying Scappman thereof.

e.      Subcontractors.    Scappman has the right to subcontract any or all of the Services but will remain responsible under this Agreement for the performance of its subcontractors.

f.       Force majeure.  Either Party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by or due to any event of ‘force majeure’. Force majeure is any unforeseeable event beyond the reasonable control of the Parties (or any foreseeable event with unforeseeable consequences that may not reasonably be avoided), that completely or partially prevents the fulfilment of a Party’s obligations,  such as diseases or epidemics, earthquake, flood, labour disputes or strikes, utility curtailments, power failures, explosions, civil disturbances, vandalism, riots, war, terrorism, governmental or regulatory actions, and acts or omissions of third parties. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

g.      Governing law and jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of Belgium. Both Parties agree that any cause of action relating to this Agreement shall be brought exclusively before the courts of Antwerp.

h.      Integration.  This Agreement expresses the complete and final understanding of the Parties with respect to the subject matter hereof, and supersedes all prior communications between the Parties, whether written or oral with respect to the subject matter hereof.  No modification of this Agreement will be binding upon the Parties hereto, unless in writing and executed by the User and Scappman.

i.       Notices.  All notices, questions, complaints or comments should be sent to Scappman, Bunderbeeklaan 28, 2950 Kapellen, Belgium or by email: info@scappman.com, support@scappman.com.

j.       Survival.  The respective rights and obligations of Scappman and the User, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation, the obligations regarding Confidential Information, Intellectual Property Rights, limitation of liability and indemnification, shall survive the termination or expiration of this Agreement.

k. Change.          These Terms are subject to change by Scappman, to the extent permitted by law. Scappman will notify Users of any change to these Terms in writing or by posting an amended version of these Terms on its websites and platforms at least forty-five (45) days in advance. If the User does not agree with a substantial change of these Terms, he/she will have the right to terminate this Agreement upon giving one (1) month written notice (in case of pre-paid fees, the User will be entitled to receive a refund on a pro-rated basis). The continued use of the Platform or the Services will be considered as consent by the User to the changes.