These general terms and conditions apply to every offer or quotation from XITENS regarding Services and form an integral part of every Agreement between XITENS and Customer. Provisions or conditions set by Customer that deviate from, or do not appear in, these General Terms and Conditions are only binding for XITENS if and to the extent that they have been expressly accepted in writing by XITENS.

Capitalized terms have the meaning stated in the last article.

Article 1. Conclusion of contract

1.1 Customer can request the Services directly from the XITENS Website. The Agreement is created at the moment of sending the (automatically generated or not) email from XITENS containing the confirmation and acceptance of the request.
1.2 Agreements concluded are final. If Customer is a consumer, the delivery of Services will commence with the express consent of Customer immediately after ordering.

Article 2. Execution of the agreement

2.1 After the Agreement has been concluded, XITENS will fulfil it to the best of its ability and with due care and professionalism.
2.2 XITENS will make every effort to realize high-quality and uninterrupted availability of Services and associated systems and networks, and to realize access to data stored by Customer with them. However, XITENS does not offer any guarantees regarding quality or availability, unless otherwise agreed in the quotation by means of a Service Level Agreement (SLA) designated as such.
2.3 Delivery times specified by XITENS are always indicative, except where the applicable SLA sets terms that cannot be interpreted as anything other than a result commitment.
2.4 If and to the extent that proper performance of the Agreement requires this, XITENS has the right to have certain work performed by third parties. Any unexpected additional costs related to this shall be borne by the Customer, unless otherwise agreed. These General Terms and Conditions also apply to the work performed by third parties within the framework of the Agreement.
2.5 If so agreed, XITENS will provide Customer with access to an Account. The Account will be accessible by entering a password and user name. Any action that takes place via the Customer’s Account or an Account created by Customer is deemed to have taken place under the responsibility and risk of Customer. If Customer suspects or should reasonably suspect or know that an Account is being misused, Customer must report this to XITENS as soon as possible so that it can take measures.
2.6 XITENS will make itself available for a reasonable level of remote customer support by email, during regular business hours, unless otherwise provided in the applicable SLA.
2.7 All changes to the Agreement, either at the request of the Client or as a result of the fact that a different execution is necessary due to any circumstances whatsoever, will be considered additional work if they involve additional costs and less work if they involve lower costs. These will be invoiced to the Client accordingly.

Article 3. Customer’s obligations

3.1 Customer is obliged to do and refrain from doing everything that is reasonably necessary and desirable to enable timely and correct execution of the Agreement. In particular, Customer shall ensure that all data that XITENS indicates is necessary or that Customer should reasonably understand is necessary for the execution of the Services, are provided to XITENS in a timely manner. The period within which XITENS must execute the Agreement shall not commence until all requested and necessary data have been received by XITENS.
3.2 If Customer knows or can suspect that XITENS will have to take certain (additional) measures in order to meet its obligations, Customer will inform XITENS thereof without delay. This obligation applies, for example, if Customer knows or should foresee that an extraordinary peak in the load on XITENS’ systems will occur, which could in all probability cause the Services to be unavailable. This applies even more so if Customer knows that Services are also provided to others via the same systems that XITENS uses to provide Services to Customer. After warning, XITENS will do everything in its power to prevent the Services from being unavailable. Unless expressly agreed otherwise in writing, all reasonable additional costs incurred in this regard may be charged to Customer.
3.3 Customer may not use the Services for High Risk Applications under any circumstances.
3.4 If Customer requires any permit or other permission from government agencies or third parties for the specific use that Customer gives or intends to give to the Services, Customer must ensure that it obtains this. Customer guarantees to XITENS that it has all permits and/or permissions that are necessary for Customer to use the Services.

Article 4. Code of Conduct and Notice/Takedown

4.1 Customer is prohibited from using the Services to violate Dutch or other laws or regulations applicable to Customer or XITENS or to infringe the rights of others.

It is prohibited (whether or not this is legal) by XITENS to offer or distribute Materials using the Services that:
clearly primarily intended to assist others in violating the rights of third parties, such as websites with (exclusively or mainly) hacking tools or explanations about computer crime that are clearly intended to enable the reader to commit the criminal acts described and not to be able to defend themselves against them;
be clearly defamatory, libelous, insulting, racist, discriminatory or hateful;
contains child pornography or bestiality pornography or is apparently intended to help others find such materials;
constitute a violation of the privacy of third parties, including but not limited to the distribution of personal data of third parties without permission or necessity or the repeated harassment of third parties with unwanted communications;
contains unsolicited commercial, charitable or ideological communications;
contains malicious content such as viruses or spyware.
The distribution of pornographic Materials through the Services is only permitted to the extent that this is expressly stated as permitted in the offer.

4.4 Customer shall refrain from hindering other customers or internet users or from causing damage to systems or networks of XITENS or other customers. Customer is prohibited from starting up processes or programs, whether or not via the systems of XITENS, of which Customer knows or could reasonably suspect that this will hinder or cause damage to XITENS, its customers or internet users.
4.5 If, in the opinion of XITENS, hindrance, damage or any other danger arises for the functioning of the computer systems or the network of XITENS or third parties and/or of the service provision via the internet, in particular due to excessive sending of e-mail or other data, denial-of-service attacks, poorly secured systems or activities of viruses, Trojans and similar software, XITENS is entitled to take all measures that it reasonably deems necessary to avert or prevent this danger. XITENS may recover the costs that are reasonably necessary associated with these measures from the Customer.
4.6 When XITENS receives a complaint about a violation of this article by Customer, or itself determines that this appears to be the case, XITENS will inform Customer of the complaint or violation as soon as possible. Customer will respond as soon as possible, after which XITENS will decide how to act.
4.7 If XITENS believes that a violation has occurred, it will block access to the Material in question, but without permanently removing this Material (unless this proves technically impossible, in which case XITENS will make a backup). XITENS will make every effort not to affect any other Materials. XITENS will inform Customer of any measures taken as soon as possible.
4.8 XITENS is at all times entitled to report any criminal offences it finds. Furthermore, XITENS is entitled to provide the name, address and other identifying details of the Customer to a third party who complains that the Customer is infringing its rights or these General Terms and Conditions, provided that the correctness of the complaint is reasonably sufficiently plausible and the third party has a clear interest in the disclosure of the details.
4.9 Although XITENS strives to act as reasonably, carefully and adequately as possible following complaints about the Customer, XITENS is never obliged to compensate for damage as a result of measures as referred to in this article.
4.10 Customer is permitted to resell the Services, but only in combination with or as part of Customer’s own products or services and without disclosing the name of XITENS as supplier or subcontractor. Customer shall indemnify XITENS against all claims by its customers. XITENS may also take full action in the event of violations of these general terms and conditions by those customers.

Article 5. Application for domain names

5.1 Application, allocation and any use of a domain name are dependent on and subject to the applicable rules and procedures of the relevant registration authorities, such as the Stichting Internet Domeinregistratie Nederland for .nl domain names. The relevant authority decides on the allocation of a domain name. XITENS only plays an intermediary role in the application and does not guarantee that an application will be honored.
5.2 Customer can only learn of the fact of registration from the confirmation of XITENS, in which it is stated that the requested domain name has been registered. An invoice for registration costs is not a confirmation of registration.
5.3 Customer shall indemnify and hold XITENS harmless for all damages related to (the use of) a domain name on behalf of or by Customer. XITENS shall not be liable for Customer losing its right(s) to a domain name or for the fact that the domain name is requested and/or obtained by a third party in the meantime, except in the event of intent or deliberate recklessness on the part of Customer.
5.4 Customer must comply with the rules that registration authorities set for the application, allocation or use of a domain name. XITENS will refer to these rules during the registration procedure.
5.5 XITENS has the right to make the domain name inaccessible or unusable, or to place it in its own name if the Customer demonstrably fails to comply with the Agreement, but only for the duration that the Customer is in default and only after a reasonable period for compliance set in a written notice of default has elapsed.
5.6 In the event of termination of the Agreement due to breach of contract by the Customer, XITENS is entitled to terminate a domain name of the Customer, subject to a notice period of two months.

Article 6. Storage and data limits

6.1 XITENS may impose a maximum on the amount of storage space or data traffic per month that Customer may or may actually use in connection with the Services.
6.2 The limits are guaranteed by the operation of the systems and cannot be exceeded, unless there is a hack or an error. If such a hack or error is caused by Customer or is attributable to Customer, the exceeding of the limit(s) can be charged to Customer afterwards.
6.3 No liability exists for the consequences of not being able to send, receive, store or change data if an agreed limit for storage space or data traffic has been exceeded.
6.4 If an excessive amount of data traffic is caused by an external cause (such as a denial of service attack), XITENS is entitled to charge the costs to the Customer in all reasonableness.

Article 7. Intellectual property rights

7.1 All intellectual property rights to all Materials developed or made available by XITENS within the framework of the Agreement shall remain the exclusive property of XITENS or its licensors.
7.2 Customer shall only obtain the rights of use and powers explicitly granted in writing in these General Terms and Conditions, the Agreement or otherwise, and Customer shall otherwise not reproduce or publish these Materials. The aforementioned shall be subject to exception if Customer has clearly failed to grant such a right in an express manner by mistake. However, the source code of Materials shall at all times only be required if explicitly agreed.
7.3 Unless otherwise agreed in Writing, the Customer is not permitted to remove or change any indication concerning copyrights, trademarks, trade names or other intellectual property rights from these Materials, including indications concerning the confidential nature and secrecy of the Materials.
7.4 XITENS is permitted to take technical measures to protect its Materials. If XITENS has secured these Materials by means of technical protection, the Customer is not permitted to remove or circumvent this protection, except if and to the extent that the law mandatorily determines the contrary.

Article 8. Prices

8.1 Unless expressly stated otherwise with an amount, and unless it concerns a consumer customer, all prices stated by XITENS are exclusive of sales tax and other levies imposed by the government.
8.2 If a price is based on information provided by the Customer and this information proves to be incorrect, XITENS has the right to adjust the prices accordingly, even after the Agreement has already been concluded.
8.3 If the Agreement concerns a Subscription, XITENS is entitled to change the rates applied at any time.
8.4 The same conditions and procedures apply to price changes as to changes to the Services and these General Terms and Conditions.

Article 9. Payment terms

9.1 XITENS will invoice the amounts owed by the Customer to the Customer. XITENS may issue electronic invoices. XITENS has the right to charge periodically owed amounts prior to the delivery of the Services.
9.2 The payment term of an invoice is the term stated on the invoice, unless otherwise agreed in writing.
9.3 If the Customer has not paid in full within 14 days after the payment term, he will automatically be in default without any notice of default being required.
9.4 If the Customer is in default, this will have the following consequences:

Statutory interest is due on the outstanding amount;
In addition to the amount owed and the interest accrued thereon, the Customer is obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs of lawyers, legal experts, bailiffs and collection agencies;
The websites and other Materials hosted for Customer may be made inaccessible without further notice until the outstanding amounts, interest and the like have been paid.

9.5 Unless Customer is a consumer, Customer is not permitted to invoke suspension, settlement or deduction.
9.6 If Customer fails to fulfil any obligation under the Agreement, XITENS shall be entitled, without any notice of default, to take back any goods delivered in addition to suspending Services, without prejudice to XITENS’ right to compensation for damages, lost profits and interest.

Article 10. Liability

10.1 XITENS shall not be liable in connection with the conclusion or performance of the Agreement except in the cases mentioned below and up to the limits stated therein.
10.2 XITENS’ total liability for damage suffered by Customer as a result of an attributable failure by XITENS to fulfil its obligations under the Agreement, expressly including any failure to fulfil a warranty obligation agreed with Customer, or due to an unlawful act by XITENS, its employees or third parties engaged by it, is limited per event or a series of related events to an amount equal to the total of the fees (excluding VAT) that Customer has paid under the Agreement up to the time at which the damage occurred, or, if the Agreement has a duration of more than three (3) months, an amount equal to the fees that Customer has paid in the last three (3) months. In no event, however, will the total compensation for direct damage exceed one thousand (1,000) euros (excluding VAT).
10.3 XITENS is expressly not liable for:
a) any damage suffered as a result of measures taken in good faith by XITENS, but which nevertheless prove to have been wrongly imposed;
b) damage resulting from unavailability of the Services, lost data and breach of technical or organizational security measures, and
c) indirect damage, consequential damage, loss of profit, missed savings and damage due to business stagnation.
10.4 XITENS’ liability for attributable failure to comply with the Agreement shall only arise if Customer promptly and properly notifies XITENS in writing of default, thereby setting a reasonable term for remedying the failure, and XITENS continues to fail to comply with its obligations after that term. The notice of default must contain as detailed a description of the failure as possible, so that XITENS is able to respond adequately. The notice of default must be received by XITENS within 14 days of the discovery of the damage.
10.5 The exclusions and limitations referred to in this article shall lapse if and to the extent that the damage is the result of intent or deliberate recklessness on the part of the management of XITENS.
10.6 Customer shall be liable to XITENS for any damage caused by an error or shortcoming attributable to Customer. Customer shall indemnify XITENS against claims relating to Customer’s failure to comply with the code of conduct in Article when using the Services. This indemnity shall also apply to persons who are not employees of Customer but who nevertheless used the Services under the responsibility or with the permission of Customer.

Article 11. Force Majeure

11.1 Neither party can be held to fulfil any obligation if a circumstance beyond the control of the parties and which could not or should not have been foreseen at the time of entering into the Agreement, nullifies any reasonable possibility of fulfilment.
11.2 Force majeure includes (but is not limited to): disruptions of public infrastructure that is normally available to XITENS, and on which the delivery of the Services depends, but over which XITENS has no actual power or contractual obligation to comply, such as the operation of the registers of IANA, RIPE or SIDN, and all networks on the internet with which XITENS has not entered into a contract; disruptions in infrastructure and/or Services of XITENS that are caused by computer crime, for example (D)DOS attacks or successful or unsuccessful attempts to circumvent network security or system security; shortcomings of suppliers of XITENS, that XITENS could not foresee and for which XITENS cannot hold its supplier liable, for example because the supplier in question (also) suffered from force majeure; Defects in items, equipment, software or other source material the use of which has been prescribed by the Customer; Unavailability of staff members (due to illness or otherwise); government measures; general transport problems; strikes; wars; terrorist attacks and civil unrest.
11.3 If a force majeure situation lasts longer than three months, either party has the right to terminate the agreement in writing. In that case, what has already been performed under the agreement will be settled proportionally, without the parties owing each other anything else.

Article 12. Confidentiality

12.1 Parties shall treat information that they provide to each other before, during or after the performance of the Agreement as confidential if this information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. Parties shall also impose this obligation on their employees and on third parties engaged by them for the performance of the Agreement.
12.2 XITENS will not take cognizance of data that Customer stores and/or distributes via XITENS systems, unless this is necessary for the proper execution of the Agreement or XITENS is obliged to do so by virtue of a statutory provision or court order. In that case, XITENS will make every effort to limit the cognizance of the data as much as possible, insofar as this is within its power.
12.3 The obligation of confidentiality shall continue to exist after termination of the Agreement for any reason whatsoever, and for as long as the disclosing party can reasonably claim the confidential nature of the information.

Article 13. Duration and termination

13.1 The term of the Agreement is the period of time necessary to provide the Services. If the Agreement is a Subscription, it is entered into for a period of one year.
13.2 If a fixed term has been agreed for the Subscription, neither party may unilaterally terminate the Agreement before the term has expired, unless there are special grounds for termination, as further described below.
13.3 Before the Subscription expires, Customer will be asked whether they want to renew, for a period specified by XITENS. The Agreement will only be extended if Customer indicates that they want to do so.
13.4 XITENS may suspend or terminate the Agreement in writing with immediate effect if at least one of the following special grounds applies:
a) Customer is in default with respect to a material obligation
b) Customer’s bankruptcy has been requested;
c) Customer has applied for a suspension of payments;
d) Customer’s activities are terminated or liquidated.
13.5 If XITENS suspends the fulfillment of its obligations, it retains its claims under the law and the Agreement, including the claim to payment for the Services that have been suspended.
13.6 If the Agreement is terminated or dissolved, XITENS’ claims on Customer shall be immediately due and payable. In the event of dissolution of the Agreement, amounts already invoiced for services rendered shall remain due, without any obligation to undo. In the event of dissolution by Customer, Customer may only dissolve that part of the Agreement that has not yet been performed by XITENS. If the dissolution is attributable to Customer, XITENS shall be entitled to compensation for the damage that arises directly and indirectly as a result.
13.7 The right to suspend in the above cases applies to all Agreements concluded with the Customer simultaneously, even if the Customer is only in default with regard to one Agreement, and without prejudice to XITENS’ right to compensation for damages, lost profits and interest.

Article 14. Procedure after termination

14.1 After termination of the Agreement, as a result of cancellation or dissolution, XITENS is entitled to immediately delete all stored data or make it inaccessible and to close all Customer Accounts.
14.2 The deletion of data stored for the Customer is carried out as standard without special precautions to make the deletion irreversible, but can be done on request for an additional fee using a software data shredder.

Article 15. Order of precedence and amendment of conditions

15.1 XITENS reserves the right to change or supplement the Services and these General Terms and Conditions. Changes also apply to agreements already concluded, taking into account a period of 30 days after announcement of the change.
15.2 Changes will be announced via an electronic ticket system, or by email to Customer, or another channel of which XITENS can prove that the announcement has reached Customer. Non-substantive changes of minor importance can be implemented at any time and do not require notification.
15.3 If Customer does not wish to accept a change, Customer must inform XITENS of this in writing within two weeks of the announcement, stating reasons. XITENS may then reconsider the change. If XITENS does not withdraw the change, Customer may terminate the agreement up to the date on which the new conditions come into effect, against this date.
15.4 Provisions relating to specific Services shall, if applicable, prevail over general provisions relating to all services. Further agreements between XITENS and Customer shall only prevail over these General Terms and Conditions if they are in Writing and if this has been expressly determined or was the unmistakable intention of both parties.

Article 16. Other provisions

16.1 The Agreement is governed by Dutch law.
16.2 Unless otherwise prescribed by mandatory law, all disputes that may arise in connection with the Agreement will be submitted to the competent Dutch court for the district in which XITENS is established.
16.3 If any provision of the Agreement proves to be null and void, this shall not affect the validity of the entire agreement. In that case, the parties shall establish (a) new provision(s) in replacement, which shall give effect to the intention of the original Agreement and General Terms and Conditions as much as legally possible.
16.4 Information and communications, including price indications, on the XITENS Website are subject to programming and typing errors. In the event of any inconsistency between the Website and the Agreement, the Agreement shall prevail.
16.5 The log files and other electronic or non-electronic administration of XITENS constitute full proof of statements made by XITENS and the version of any (electronic) communication received or stored by XITENS is considered authentic, unless the Customer provides proof to the contrary.
16.6 The Parties shall always inform each other in writing without delay of any changes in name, postal address, e-mail address, telephone number and, if requested, bank or giro account number.
16.7 Each party shall only be entitled to transfer its rights and obligations under the Agreement to a third party with the prior written consent of the other party. However, such consent shall not be required in the event of a business takeover or takeover of the majority of the shares of the party concerned.

Article 17. Definitions of terms used

In deze voorwaarden wordt verstaan onder: XITENS: Het bedrijf XITENS, gevestigd te Zeewolde en ingeschreven bij de Kamer van Koophandel onder dossiernummer 61228893.

XITENS Website: The XITENS website, accessible via the domain https://www.xitens.nl.
Subscription: The Agreement whereby one or more of the parties undertakes to perform services continuously or repeatedly for a certain period of time (e.g. a 12-month hosting contract).
Account: The right to access a user interface through which Customer can manage and configure (certain aspects of) the Services, as well as the configuration(s) and the files stored for Customer themselves.
General terms and conditions: The provisions of this document.
Customer: The natural person or legal entity with whom XITENS has concluded an Agreement. This also includes the person who is or is negotiating with XITENS in this regard, as well as his or her representative(s), authorised representative(s), legal successor(s) and heirs.
Services: The products and/or services that XITENS will provide to Customer under an Agreement.
Materials: All works, such as websites and (web) applications, software, house styles, logos, folders, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice, reports and other products of the mind, as well as preparatory material thereof and (encoded or not) files or data carriers on which the Materials are located.
Agreement: Any agreement between XITENS and Customer under which XITENS provides Services to Customer.
Written: In addition to paper documents, also e-mail and communication by fax, provided that the identity of the sender and the integrity of the message are sufficiently established.
Applications with increased risk: Applications where an error in the Services could lead to death or serious injury, serious environmental damage or loss of (personal) data with very high consequential damage. Examples of Applications with increased risk are: transportation systems where an error could cause trains to derail or aircraft to crash; medical systems where an error could result in a patient not being able to receive treatment or receiving the wrong treatment; systems on which a substantial part of the population depends for the allocation of crucial government services, such as DigiD; systems in which (a lot of) medical data or other special data within the meaning of the Personal Data Protection Act, or otherwise very sensitive data is stored.
Additional conditions: IAn addition to our General Terms and Conditions is the Processor Agreement applicable.
These general terms and conditions have been filed at the office of the Chamber of Commerce in Almere under file number 61228893.