Terms of service

Applicability

 

These terms and conditions apply to all quotations, offers, work, orders, agreements and deliveries of services or products by or on behalf of Xtenate. Xtenate and the Customer can only deviate from these terms and conditions if this has been agreed in writing. Xtenate and the Customer expressly exclude the applicability of the general terms and conditions of the Customer or others.

 

Prices

Xtenate uses prices in euros, including VAT and excluding any other costs such as administration or shipping costs, unless otherwise agreed in writing. Xtenate may always change the prices of its services and products on its website and in other media. 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 lead to price increases. The consumer has the right to cancel 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 Customer 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 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 Customer must have paid a payment afterwards within 14 days after delivery. The payment terms used by Xtenate are fatal payment terms. This means that if the Customer has not paid the agreed amount by the last day of the payment term at the latest, he is automatically in default and in breach, without Xtenate having to send the Customer 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 Customer 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 Customer is in default, with a part of a month counted as a full month. When the Customer is in default, he must also pay extrajudicial collection costs and any compensation to Xtenate. The collection costs are calculated according to the Extrajudicial Collection Costs Decree. When the Customer does not pay on time, Xtenate may suspend its obligations until the Customer has paid. In the event of liquidation, bankruptcy, seizure or suspension of payment on the part of the Customer, Xtenate's claims on the Customer are immediately due and payable. If the Customer refuses to cooperate in the performance of the agreement by Xtenate, he must still pay the agreed price.

 

Right of reclamation

When the Customer is in default, Xtenate may invoke the right of reclamation with respect to the unpaid products delivered to the Customer. Xtenate exercises its right of reclamation by notifying the Customer in writing or electronically. As soon as the Customer has been informed of the invoked right of reclamation, the Customer must immediately return the products in question to Xtenate, unless otherwise agreed in writing. The Customer pays the costs for retrieving or returning the products in paragraph 3.

 

Right of withdrawal

A consumer may cancel an online purchase within 14 days 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 quickly spoil, 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 hygienic reasons, such as underwear or swimwear

- The seal is not intact when it comes to data carriers with digital content, such as DVDs or CDs

- The product or service concerns accommodation, a trip, a restaurant business, transport, a catering assignment or a form of leisure activity

- The product is a loose magazine or loose newspaper

- The consumer has waived his right of withdrawal

The 14-day consideration period in paragraph 1 starts:

- 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 purchasing digital content via the internet

The consumer can make use of his consideration 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 to Xtenate within 14 days of making his right of withdrawal known, failing which his right of withdrawal will lapse.

 

Reimbursement of shipping costs

When the consumer has timely revoked his purchase and timely returned the entire order to Xtenate, Xtenate will refund any shipping costs paid by the consumer within 14 days of receiving the timely and fully returned order. The costs for delivery are only for the account of Xtenate insofar as the entire order is returned.

 

Reimbursement of return costs

If the consumer exercises his right of withdrawal and returns the entire order on time, the Customer pays the costs for this.

 

Suspension right

Unless the Customer 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 hold on to the Customer's products until the Customer has paid all outstanding invoices of Xtenate, unless the Customer has provided sufficient security for those costs. The right of retention also applies on the basis of previous agreements as a result of which the Customer still owes money to Xtenate. Xtenate is not liable for any damage the Customer suffers as a result of the use of its right of retention.

 

Setoff

Unless the Customer is a consumer, he waives his right to set off a debt to Xtenate against a claim on Xtenate.

 

Retention of title

Xtenate remains the owner of all delivered products until the Customer has paid all outstanding invoices of Xtenate with regard to an underlying agreement, including claims due to non-performance.

Until then in paragraph 1, Xtenate can make use of its retention of title and take back the goods.

Before ownership has passed to the Customer, the Customer may not pledge, sell, alienate or encumber the products in any other way.

When Xtenate makes use of its retention of title, the agreement is thereby dissolved and Xtenate may demand compensation, lost profits and interest from the Customer.

 

Delivery

Delivery takes place as long as stocks last.

Delivery takes place at Xtenate, unless otherwise agreed.

Delivery of online ordered products takes place at the address indicated by the Customer.

When the Customer does not pay the agreed amounts or not on time, Xtenate may suspend its obligations until the Customer pays.

In the event of late payment, there is creditor's default, as a result of which the Customer cannot hold Xtenate accountable for a delayed delivery.

 

Delivery time

Xtenate's delivery times are indicative. If delivery is later, the Customer cannot derive any rights from this, unless otherwise agreed in writing.

The delivery time starts when the Customer has fully completed the ordering process and received confirmation of this from Xtenate.

The Customer does not receive any compensation and may not cancel the agreement when Xtenate delivers later than agreed. The Customer may only cancel 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 Customer and Xtenate have agreed something else.

 

Actual Delivery

The Customer 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 in writing.

 

Packaging and shipping

If the packaging of a delivered product is opened or damaged, the Customer must have the carrier make a note of this before he receives the product. If the Customer does not do this, he cannot hold Xtenate liable for any damage.

If the Customer arranges the transport of a product himself, he must report any visible damage to the products or the packaging to Xtenate prior to transport. If the Customer does not do this, he cannot hold Xtenate liable for any damage.

 

Storage

If the Customer does not take delivery of the ordered products until after the agreed delivery date, the risk of any quality loss is entirely for the Customer's account.

Any additional costs as a result of premature or late collection of products are entirely for the Customer's account.

 

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 event 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 Customer

- 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 Customer at the moment they are legally and/or actually delivered, or come into the power of the Customer or a third party who receives the product on behalf of the Customer.

 

Exchange

The Customer may exchange a purchased item. The following conditions apply:

- exchange takes place within 14 days of purchase, with the Customer able to show the original invoice

- the product is returned in the original packaging and with the original price tag attached

- the product has not been used

Discounted items, perishable products, custom-made items or items specially adapted for the Customer cannot be exchanged.

 

Indemnification

The Customer indemnifies Xtenate against all claims from others related to the products and/or services delivered by Xtenate.

 

Complaints

The Customer must investigate a product or service delivered by Xtenate for any shortcomings as soon as possible.

If a delivered product or service does not meet what the Customer could reasonably expect, the Customer 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 Customer provides as detailed a description as possible of the shortcoming, so that Xtenate can respond appropriately.

The Customer must demonstrate that the complaint relates to an agreement between the Customer and Xtenate.

When a complaint relates to ongoing work, the Customer cannot demand that Xtenate perform work other than what has been agreed.

 

Notice of default

The Customer must notify Xtenate of any notice of default in writing.

The Customer is responsible for ensuring that his notice of default actually reaches Xtenate on time.

 

Liability of the Customer

When Xtenate enters into an agreement with multiple Customers, each of them is jointly and severally liable for fulfilling the agreements in that agreement.

 

Liability of Xtenate

Xtenate is only liable for damage suffered by the Customer if the damage is caused by intent or conscious recklessness.

If Xtenate is liable for damage, this only applies to direct damage related to the performance of an underlying agreement.

Xtenate is not liable for indirect damage, such as consequential damage, lost profits or damage 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 compensation 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 merely indicative and cannot lead to any compensation, dissolution or suspension.

 

Limitation period

Any right of the Customer 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 Customer may cancel the agreement when Xtenate fails attributably in the performance of its obligations, unless this shortcoming does not justify the dissolution due to its special nature or minor significance.

If the performance of the obligations by Xtenate is still possible, dissolution can only take place after Xtenate has been in default.

Xtenate may cancel the agreement with the Customer if the Customer does not fully or timely fulfill his obligations under the agreement, or if Xtenate has become aware of circumstances that give it good reason to assume that the Customer will not fulfill his 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 Customer when there is a case 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 by suppliers, carriers or others

- power, electricity, internet, computer or telecommunications failures

- 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 Customer, 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 Customer and Xtenate may cancel the agreement in whole or in part in writing.

Xtenate does not have to pay any compensation to the Customer in a force majeure situation, even if Xtenate benefits from it.

 

Amendment of the agreement

If it is necessary for the performance thereof to amend a concluded agreement, the Customer 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 major changes with the Customer as much as possible in advance.

A consumer may terminate the underlying agreement in the event of a major amendment to the general terms and conditions.

 

Transfer of rights

The Customer cannot transfer rights from an agreement with Xtenate to others without the written consent of Xtenate.

This provision acts as a property law clause 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 terms and 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 drawing up the terms and conditions on that point.

 

Applicable law and competent court

Dutch law applies to these general terms and conditions and any underlying agreement between the Customer and Xtenate.

The court in the district of the registered office of Xtenate has exclusive jurisdiction to hear any disputes between the Customer and Xtenate, unless the law provides otherwise.