General Terms and Conditions:
Applicability
These terms and conditions apply to all offers, proposals, work, orders, agreements and deliveries of services or products by or on behalf of Xtenate. Xtenate and the Client can only deviate from these conditions if this has been agreed in writing. Xtenate and the Client explicitly exclude the applicability of the general terms and conditions of the Client or others.
Prices
Xtenate charges prices in euros, including VAT and excluding any other costs such as administration or shipping costs, unless agreed otherwise in writing. Xtenate may always change the prices of its services and products on its website and in other communications. Increases in the cost prices of products or components thereof, which Xtenate could not foresee at the time of making the offer or the conclusion of the agreement, may give rise to price increases. The consumer has the right to terminate an agreement due to a price increase in paragraph 3, unless the increase is the result of a legal regulation.
Samples and models
When the Client has received a sample or model of a product, he cannot derive any other rights from it than that it is an indication of the nature of the product, unless it has been agreed in writing that the products to be delivered will correspond to the sample or model.
Payments and payment term
Xtenate may demand an advance payment of up to 50% of the agreed amount when entering into the agreement. The Client must have paid the payment afterwards within 14 days after delivery. The payment terms used by Xtenate are fatal payment terms. This means that if the Client has not paid the agreed amount by the last day of the payment term at the latest, he is automatically in default, without Xtenate having to send the Client a notice of default or put him in default. Xtenate may make a delivery dependent on immediate payment or demand security for the total amount of the services or products.
Consequences of late payment
If the Client does not pay within the agreed term, Xtenate may charge the statutory interest of 2% per month for non-commercial transactions and the statutory interest of 8% per month for commercial transactions from the day the Client is in default, with a part of a month counted as a full month. When the Client is in default, he must also pay Xtenate's extrajudicial collection costs and any compensation. The collection costs are calculated according to the Decree on compensation for extrajudicial collection costs. When the Client does not pay on time, Xtenate may suspend its obligations until the Client has paid. In the event of liquidation, bankruptcy, seizure or suspension of payment on the part of the Client, Xtenate's claims on the Client are immediately due and payable. If the Client refuses to cooperate in the execution of the agreement by Xtenate, he still has to pay the agreed price.
Right of reclamation
When the Client is in default, Xtenate may invoke the right of reclamation with regard to the unpaid products delivered to the Client. Xtenate exercises its right of reclamation by means of a written or electronic notification to the Client. As soon as the Client has been informed of the invoked right of reclamation, the Client must immediately return the products in question to Xtenate, unless otherwise agreed in writing. The Client pays the costs for retrieving or returning the products in paragraph 3.
Right of withdrawal
A consumer may undo an online purchase within 1 day of purchase without giving any reason. This right of withdrawal does not apply when:
- The product has been used
- It is a product that can spoil quickly, such as food or flowers
- It is a product that has been specially made or adapted for the consumer
- It is a product that cannot be returned for hygiene reasons, such as underwear or swimwear
- The seal is not intact, when it concerns data carriers with digital content, such as DVDs or CDs
- The product or service concerns accommodation, travel, a restaurant business, transport, a catering assignment or a form of leisure
- The product is a loose magazine or loose newspaper
- The consumer has waived his right of withdrawal
The reflection period of 1 day in paragraph 1 starts:
- on the day after the consumer has received the last product or part of 1 order
- as soon as the consumer has confirmed that he will be obtaining digital content via the internet
The consumer can make use of his reflection period by sending an email with that subject to xtenate@gmail.nl, possibly with the help of the withdrawal form available on the Xtenate website, xtenate.nl. The consumer must return the product within 14 days of making his withdrawal known, failing which his right of withdrawal will lapse.
Reimbursement of shipping costs
If the consumer has timely revoked his purchase and returned the entire order to Xtenate on time, Xtenate will refund any shipping costs paid by the consumer within 14 days of receiving the timely fully returned order. The delivery costs are for the account of the customer which will be €6.95.
Reimbursement of return costs
If the consumer invokes his right of withdrawal and returns the entire order on time, the Client will pay the costs for this.
Right of suspension
Unless the Client is a consumer, he hereby waives the right to suspend the performance of any obligation arising from this agreement.
Right of retention
Xtenate may make use of its right of retention and in that case keep products of the Client with it, until the Client has paid all outstanding invoices of Xtenate, unless the Client has provided sufficient security for those costs. The right of retention also applies on the basis of earlier agreements whereby the Client still owes money to Xtenate. Xtenate is not liable for any damage the Client suffers due to the use of its right of retention.
Setoff
Unless the Client is a consumer, he waives his right to set off a debt to Xtenate with a claim on Xtenate.
Retention of title
Xtenate remains the owner of all products delivered until the Client has paid all outstanding invoices of Xtenate with regard to an underlying agreement, including claims due to shortcomings in performance.
Until then in paragraph 1, Xtenate can make use of its retention of title and take back the goods.
Before the ownership has passed to the Client, the Client may not pledge, sell, alienate or otherwise encumber the products.
When Xtenate makes use of its retention of title, the agreement is thereby cancelled and Xtenate may demand compensation, lost profits and interest from the Client.
Delivery
Delivery takes place as long as stocks last.
Delivery of online ordered products takes place at the address specified by the Client.
When the Client does not pay the agreed amounts or not on time, Xtenate may suspend its obligations until the Client pays.
In the event of late payment, there is creditor's default, as a result of which the Client cannot oppose a delayed delivery to Xtenate.
Delivery time
Xtenate's delivery times are indicative. If delivery is later, the Client cannot derive any rights from this, unless otherwise agreed in writing.
The delivery time starts when the Client has fully completed the ordering process and received confirmation of this from Xtenate.
The delivery time is between 1 and 4 weeks (depending on the delivery address).
The Client does not receive any compensation and may not undo the agreement when Xtenate delivers later than agreed. The Client may, however, undo the agreement when this has been agreed in writing or when Xtenate cannot deliver within 21 days, after having been summoned in writing to do so or the Client and Xtenate have agreed otherwise.
Actual delivery
The Client must ensure that the actual delivery of his ordered products can take place on time.
Transport costs
Xtenate pays the transport costs, unless this has been agreed otherwise in writing.
Packaging and shipment
If the packaging of a delivered product is opened or damaged, the Client must have the carrier make a note of this before he accepts the product. If the Client does not do this, he cannot hold Xtenate liable for any damage.
If the Client arranges the transport of a product himself, he must report any visible damage to the products or packaging to Xtenate prior to transport. If the Client does not do this, he cannot hold Xtenate liable for any damage.
Storage
If the Client takes ordered products later than the agreed delivery date, the risk of any loss of quality is entirely for the Client.
Any additional costs as a result of premature or late acceptance of products are entirely for the account of the Client.
Warranty
The warranty on products only applies to defects caused by defective manufacture or construction or defective material.
The warranty does not apply:
- in the case of normal wear and tear
- for damage caused by accidents
- for damage caused by modifications made to the product
- for damage due to negligence or improper use by the Client
- when the cause of the defect cannot be clearly determined
The risk of loss, damage or theft of the products that are the subject of an agreement between the parties passes to the Client at the moment they are legally and/or actually delivered, or in the power of the Client or a third party who receives the product on behalf of the Client.
Exchanges
The Client may exchange a purchased item. The following conditions apply:
- exchange takes place within 14 days of purchase, with the Client being able to show the original invoice
- the product is returned in the original packaging and with the attached original price tag
- the product has not been used
Discounted items, perishable products, custom-made items or items specially adapted for the Client cannot be exchanged.
Indemnification
The Client indemnifies Xtenate against all claims from others that are related to the products and/or services delivered by Xtenate.
Complaints
The Client must examine a product or service delivered by Xtenate for any deficiencies as soon as possible.
If a delivered product or service does not meet what the Client could reasonably expect, the Client must inform Xtenate of this within 1 month of establishing the shortcoming.
A consumer must inform Xtenate of this at the latest within 2 months of establishing the shortcoming.
The Client provides as detailed a description as possible of the shortcoming, so that Xtenate can respond appropriately.
The Client must demonstrate that the complaint relates to an agreement between the Client and Xtenate.
When a complaint concerns ongoing work, the Client cannot demand that Xtenate perform other work than agreed.
Notice of default
The Client must make any notice of default known to Xtenate in writing.
The Client is responsible for ensuring that his notice of default actually reaches Xtenate in time.
Liability of the Client
When Xtenate enters into an agreement with multiple Clients, each of them is jointly and severally liable for the fulfillment of the agreements in that agreement.
Liability of Xtenate
Xtenate is only liable for damage suffered by the Client if that damage has been caused by intent or conscious recklessness.
If Xtenate is liable for damages, this only applies to direct damages related to the execution of an underlying agreement.
Xtenate is not liable for indirect damages, such as consequential damages, lost profits or damages to third parties.
If Xtenate is liable, this liability is limited to the amount paid out by a closed (professional) liability insurance. If no insurance has been taken out or no damage amount is paid out, the liability is limited to the (part of the) invoice amount to which the liability relates.
All images, photos, colors, drawings, descriptions on the website or in a catalog are indicative only and cannot lead to any compensation, dissolution or suspension.
Limitation period
Any right of the Client to compensation from Xtenate expires 12 months after the event from which the liability arises directly or indirectly. This does not exclude the provisions of Article 6:89 of the Dutch Civil Code.
Dissolution
The Client may undo the agreement when Xtenate fails imputably in the performance of its obligations, unless this failure does not justify the dissolution due to its special nature or minor importance.
If the performance of the obligations by Xtenate is still possible, dissolution can only take place after Xtenate has been in default.
Xtenate may undo the agreement with the Client when the Client does not fully or timely fulfill his obligations under the agreement, or when Xtenate has become aware of circumstances that give it good reason to assume that the Client will not fulfill its obligations.
Force majeure
In addition to Article 6:75 of the Dutch Civil Code, it applies that a shortcoming of Xtenate cannot be attributed to Xtenate by the Client in the event of force majeure.
The force majeure situation in paragraph 1 also includes:
- an emergency situation such as a civil war or natural disaster
- breach of contract or force majeure of suppliers, carriers or others
- power, electricity, internet, computer or telecommunications disruptions
- computer viruses
- strikes
- government measures
- transport problems
- bad weather conditions
- work interruptions
When a force majeure situation arises in which Xtenate cannot fulfill one or more obligations towards the Client, those obligations will be suspended until Xtenate can fulfill them.
From the moment a force majeure situation has lasted at least 30 calendar days, both the Client and Xtenate may terminate the agreement in full or in part in writing.
Xtenate does not have to pay any compensation to the Client in a force majeure situation, even if Xtenate benefits from it.
Amendment of the agreement
If it is necessary for the execution to amend a concluded agreement, the Client and Xtenate can adapt the agreement.
Amendment of the general terms and conditions
Xtenate may amend these general terms and conditions.
Xtenate may always implement changes of minor importance.
Xtenate will discuss far-reaching changes with the Client as much as possible in advance.
A consumer may terminate the underlying agreement in the event of a far-reaching change to the general terms and conditions.
Transfer of rights
The Client cannot transfer rights from an agreement with Xtenate to others without the written permission of Xtenate.
This provision applies as a clause with real estate effect as referred to in Article 3:83(2) of the Dutch Civil Code.
Consequences of nullity or voidability
If one or more provisions of these general terms and conditions prove to be null and void or voidable, this will not affect the other provisions of these conditions.
A provision that is null and void or voidable will then be replaced by a provision that comes closest to what Xtenate had in mind when drafting the conditions on that point.
Applicable law and competent court
Dutch law applies to these general terms and conditions and any underlying agreement between the Client and Xtenate.
The court in the district of the registered office of Xtenate has exclusive jurisdiction to hear any disputes between the Client and Xtenate, unless the law provides otherwise.