General terms and conditions X-Guard BV

Article 1. Definitions

In these General Terms and Conditions:

  • User: X-Guard BV, established in Hengelo and registered in the trade register under Chamber of Commerce number 06081323, as well as the companies and/or enterprises affiliated with
  • Client: any natural person or legal entity who requests a quote from the User and/or with whom the User concludes an Agreement;
  • Parties: User and Client together;
  • Agreement: any agreement concluded between the User and the Client, any amendment or addition thereto, as well as all (legal) acts in preparation and implementation of that agreement;
  • Product: the equipment and/or applications and/or services supplied by the User;
  • Specification: all specific indications of a Product provided by or on behalf of the User, whether or not they form part of a quotation made by or on behalf of the User;
  • Activities: the deliveries and/or services that the User must perform under the Agreement in the context of the assignment given to it;
  • Written: writing also includes 'electronic', such as a message by e-mail, unless the law prohibits this.

Article 2. Applicability, changes and additions

2.1 These General Terms and Conditions apply to all quotations and Agreements, including amendments and/or additions thereto, in which the User carries out Work for a Client and apply to all legal relationships as a result of or in connection with them.

2.2 Deviations from these General Terms and Conditions are only valid after Written confirmation by the User. If one or more provisions of these General Terms and Conditions are deviated from, the remaining provisions will remain in effect.

2.3 These General Terms and Conditions also apply to third parties engaged by the User in the execution of the Agreement. These third parties can directly rely on these General Terms and Conditions in their relationship with the Client.

2.4 Without prejudice to the provisions of Article 9 (additional work), changes and additions to any provision in an Agreement also only apply if they have been recorded in Writing by the User; they only relate to the relevant Agreement.

2.5 The User is entitled to change or supplement these General Terms and Conditions. Changes of minor importance can be made at any time. Major substantive changes are discussed in advance with the Client.

Article 3. Quotations, offers, specifications and conclusion of agreements

3.1 Quotations from the User are valid for 30 days from the quotation date, unless explicitly stated otherwise.

3.2 An offer or (price) quotation does not bind the User and only serves as an invitation to place an order.

3.3 Specifications have been done with care. However, the user cannot guarantee that no deviations will occur in this regard.

3.4 The Client is not entitled to inform third parties or allow them to take note of a quotation and/or specification made by the User or to have the quotation or specification copied or otherwise reproduced. The Client will immediately remove a specification received by e-mail and/or a quotation made by the User by e-mail from its files at the first request of the User, and in any case if a quotation made by the User is not followed by an order.

3.5 An Agreement between User and Client will only be concluded after the Client has signed the quotation or order confirmation received from the User for approval and the assignment has been accepted or confirmed in Writing by the User. The User's order confirmation is deemed to represent the Agreement correctly and completely, unless the Client immediately protests this in Writing.

3.6 The Agreement only includes those deliveries and services that are expressly mentioned or described in the quotation or order confirmation. In the event of a difference in this regard, the order confirmation will take precedence over the quotation.

3.7 In the event of a discrepancy between these General Terms and Conditions and the Agreement, the provisions of the Agreement will prevail.

3.8 The Agreement between User and Client is entered into for a period of one (1) year, unless the nature of the Agreement dictates otherwise or if the Parties expressly agree otherwise in Writing. The Agreement will be tacitly extended for a period of one (1) year, unless the nature of the Agreement dictates otherwise or if the Parties expressly agree otherwise in Writing, unless the Agreement is terminated no later than one (1) month before the end of the current term. contract period has been canceled in writing by one of the Parties.

Article 4. General obligations of the User

4.1 The User will make every effort to the best of his knowledge and ability to carry out the Work in accordance with the requirements of good workmanship, all on the basis of the state of science known at that time; the scope of the User's obligations depends on the provisions of the Agreement and furthermore on the Client's own responsibilities or obligations or on the third parties engaged by or on behalf of the Client.

4.2 The User is obliged to do what is required by law, the requirements of reasonableness and fairness or usage based on the nature of the Agreement.

4.3 If and to the extent that this is required for the proper execution of the Agreement, the User has the right to have certain work carried out by third parties.

4.4 The User ensures that it is aware of the legal regulations and government decisions that are important for the Work, as well as regulations and regulations of a special nature, including but not limited to privacy regulations and regulations or requirements in the field of (protection of ) data management. If and to the extent that obligations arise for the User from the regulations or regulations referred to in the previous sentence, the User will comply with them. The user is obliged to handle the data disclosed to it with such care as is required by its confidential nature, all in accordance with the General Data Protection Regulation. This care includes, among other things, ensuring that data is stored and stored in such a way that unauthorized third parties cannot reasonably take note of it. The User is furthermore obliged to maintain strict confidentiality of everything that has become known to it upon entering into and implementing the Agreement, unless the law prohibits this. The obligation of confidentiality also extends to the identity of the Client. The User also imposes this obligation of confidentiality on its own staff and on third parties engaged by it. The obligation of confidentiality continues unabated after suspension of the execution of the Agreement or termination of the Agreement.

Article 5. General obligations of the Client

5.1 The Client ensures that all information that the User indicates is necessary or of which the Client should reasonably understand that it is necessary for the execution of the Agreement, is provided to the User in a timely, complete and correct manner. If the information required for the execution of the Agreement has not been provided to the User in a timely manner, the User has the right to suspend the execution of the Agreement and/or to charge the Client for the additional costs resulting from the delay at the usual rates.

5.2 The Client is obliged to warn the User in writing and within a reasonable time if he has actually noticed a shortcoming on the part of the User or must have been aware of it.

5.3 The Client may only use the User's services for lawful, permitted and permissible purposes. The Client may not use the User's services (nor help others to use them) in a way:

5.4 The Client may not use the User's services or otherwise in an impermissible or unauthorized manner or in a way that burdens, hinders or harms the User, its services, systems, its users or others. This means, among other things, that the Client is not permitted to disrupt or interrupt the safety, security, integrity, availability or performance of the User's services.

Article 6. Commencement and execution of the Work

6.1 The User cannot be obliged to commence the execution of the Work until all necessary information, data or goods, as referred to in Article 4 and/or 5, are in the User's possession.

6.2 The User is entitled to commence and/or deliver earlier, unless otherwise stated in the Agreement.

6.3 If the User has specified a term for execution, this is only indicative. A specified execution period can therefore never be regarded as a strict deadline. If a term is exceeded, the Client must therefore give the User written notice of default, whereby the User is offered a reasonable period to still implement the Agreement.

6.4 If it has been agreed that the Work will be carried out in phases, the User is entitled to postpone the start of the Work that belongs to a subsequent phase until the Client has approved the results of the preceding phase in Writing.

Article 7. Prohibition on taking over personnel

7.1 During the term of the Agreement and up to one year after termination, the Client is not permitted to employ employees of the User who have been involved in the implementation of the Agreement, or to otherwise have them work for them.

7.2 The Client forfeits an immediately payable fine and not subject to judicial mitigation amounting to one (1) gross annual salary of the employee in question in the event of violation of the obligation referred to in paragraph 1.

Article 8. Suspension, suspension, dissolution and termination

8.1 If the User or Client fails to fulfill its obligations under the Agreement, the other party, without prejudice to the provisions of the Agreement, is entitled to terminate the Agreement extrajudicially by means of a registered letter. The dissolution will only take place after the defaulting party has been given written notice of default and a reasonable period has been offered to remedy the default.

8.2 Furthermore, one party is entitled, without any reminder or notice of default being required, to terminate the Agreement in whole or in part extrajudicially and with immediate effect by means of a registered letter if:

  1. The other party applies for (provisional) suspension of payments or this party is granted (provisional) suspension of payments;
  2. The other party files for its own bankruptcy or is declared bankrupt;
  3. The other party's business is being liquidated or discontinued;
  4. The Work has been suspended or delayed for more than two months.

8.3 If the Client, after having been given notice of default, does not fulfill any obligation arising from the Agreement or does not fully or timely fulfill it, the User is entitled to suspend its obligations towards the Client, without being obliged to pay any compensation to the Client. The User is also entitled to do this in the circumstances mentioned under 8.2.

Article 9. Changes / additional and reduced work

9.1 The Client is authorized to instruct User to make changes. If the Client wishes additions or changes to the services that the User must perform under the Agreement and the User is of the opinion that these services will be made more difficult or expanded as a result, this will constitute additional work, which the User can charge to the Client separately, including: if a fixed price had previously been agreed between the Parties. The User will charge the Client for additional work at a time to be determined by it.

9.2 If the User believes that there is additional work, it will inform the Client as soon as possible and inform the Client of the consequences for the price and for the period within which the User could fulfill its other performance under the Agreement.

9.3 The User is not obliged to carry out an instructed change if the change:

  1. has not been instructed in writing, or
  2. would result in the User no longer being able to perform the Work, or
  3. exceeds the knowledge and/or skills and/or capabilities of the User, or
  4. if the Parties do not reach agreement on the financial consequences.

9.4 The lack of a written order for additional work does not affect the User's right to charge the Client for that additional work and the Client's obligation to pay the agreed amounts.

Article 10. Prices

10.1 All User prices are expressed in Euros and exclusive of sales tax.

10.2 Changes in cost-increasing factors that occur after entering into the Agreement may be passed on by the User to the Client.

10.3 If Work is hindered or suspended through no fault of the User, the resulting costs will be borne by the Client.

10.4 If the User has taken a volume discount into account when determining the prices (for example due to the purchase of large numbers of Products or entering into a subscription/bundle for a longer period), then in the event of a change in the situation for which the volume discount has been granted (for example if fewer Products are purchased or if the subscription is changed to a shorter period). The User is entitled to adjust the prices or to make a subsequent settlement.

10.5 The User is entitled to apply an inflation adjustment annually and once a year - depending on the duration of the Agreement - based on a change in the monthly price index figure according to the Consumer Price Index (CPI) series for all households (where 2015=100), such as published by the Central Bureau of Statistics. The changed price is calculated according to the formula: the changed price is equal to the applicable price on the change date, multiplied by the index figure of the calendar month that is four calendar months before the calendar month in which the price is adjusted, divided by the index figure of the calendar month that is is sixteen calendar months before the calendar month in which the price is adjusted.

Article 11. Payment

11.1 Without prejudice to the provisions of Article 11.2. The Client will pay the amounts charged to the User within the payment term stated on the invoice. All payments will be made to a giro or bank account number to be designated by the User.

11.2 The User is at all times free to deviate from the provisions of Article 11.1. to invoice and/or to require, before (further) performance, from the Client that (partial) advance payment of the agreed amounts takes place or that the Client provides proper security, in the amount of the amounts that the User, whether or not due, has or will have to claim from the Client under the Agreement, at the discretion of the User.

11.3 All amounts charged to the Client must be paid without discount or deduction. The Client is not entitled to settlement. Furthermore, the Client does not have the right to suspend any payment obligation towards the User. Questions about the invoice do not suspend the Client's payment obligation.

11.4 The Client is in default simply by expiring a payment term. In that case, all claims, for whatever reason, of the User against the Client are immediately due and payable.

11.5 Without further notice of default, the Client owes default interest from that day on all amounts that are not paid no later than the last day of the payment term, at the statutory (commercial) interest rate applicable at that time, plus 5%.

11.6 If the Client is in default towards the User, he is obliged to fully reimburse the User for the extrajudicial and judicial costs incurred.

11.7 If, after the Client is in default, the User sends payment reminders or other requests for payment to the Client, these do not affect the provisions of Articles 11.4, 11.5 and 11.6.

11.8 Any amount that the User receives from the Client will first serve to settle any claims that the User may have against the Client in respect of which the User has not made a retention of title in accordance with Article 12 or can no longer assert this retention of title. Thereafter, any amount that the User receives from the Client will first serve to settle any interest, damages and costs owed.

11.9 This article 11 does not apply if the Client uses free Activities (such as the “Public Account”).

Article 12. Ownership, retention of title

12.1 Offers and specifications remain the property of the User.

12.2 Notwithstanding actual delivery of Products by the User, ownership of the Products will only be transferred to the Client after the Client has fully paid all that it owes or will owe to the User under any Agreement.

12.3 The Client is not entitled to pledge or otherwise encumber Products delivered to him by the User.

12.4 The Client is not permitted to independently modify or imitate the Product or any part thereof.

Article 13. Inspection and complaints after delivery

13.1 The Client is obliged to carefully inspect the Product purchased by him upon delivery. Any complaints must be reported to the User by registered letter within 8 days of receipt of the Product.

13.2 Defects that cannot reasonably be expected to fall within the limits set out in Article 13.1. could have been discovered within the specified period, must be reported to the User by registered letter immediately after discovery.

13.3 The Client is obliged to send the defective Product to the User immediately after discovering the defect.

13.4 If the Client complains about defects in the Product in a timely, correct and, in the opinion of the User, justified, the resulting liability for the User is limited to that stated in Article 14.2. described obligation, taking into account the other provisions of Article 14.

Article 14. Guarantee

14.1 The User guarantees to the Client that the Product complies with all legal requirements and what has been agreed in this regard for 12 months after delivery, provided it is used normally and carefully, all (oral) instructions given for this use and personal responsibilities and obligations are punctual and complete. be complied with by the Client and without prejudice to the provisions of Article 14.3. More specifically, for beacons supplied by the User, the operation of the battery is guaranteed for the agreed duration.

14.2 Provided that a complaint has been made timely, correctly and in accordance with the provisions of Article 13 and it has been sufficiently demonstrated that the Product does not comply with what has been agreed in this regard, the User has the choice either to replace the defective Product or to have it replaced. to repair. By fulfilling one of the above-mentioned performances, the User is fully discharged of its obligations.

14.3 In the following circumstances, the User is under no circumstances subject to the provisions of Article 14.2. described obligations:

  1. if the Client has not notified the User of this by registered letter within 8 days after discovering the defect;
  2. if defects in the Product are the result of normal wear and tear, improper use or negligence on the part of the Client;
  3. if the Product is not used in accordance with its intended purpose;
  4. if the Client has failed to fulfill its responsibilities or obligations with regard to the Product;
  5. if a defect has arisen as a result of a product used by the Client itself (such as, but not limited to, a telephone).

Article 15. Liability and indemnification

15.1 If the User is liable, this liability is limited to what is regulated in this article.

15.2 The User is not liable for any damage, of any nature whatsoever, that is (partly) the result of the Client's incorrect, untimely or incomplete fulfillment of the Client's obligations under the Agreement or these General Terms and Conditions.

15.3 The User is furthermore not liable for damage that is (partly) caused by the Client not correctly, not timely or not fully following instructions and advice from the User or third parties engaged by it.

15.4 The total liability of the User due to a demonstrable attributable shortcoming in the performance of the Agreement or for any other reason is in all cases limited to compensation for the direct material damage suffered by the Client as a result.

15.5 The user is never liable for indirect damage, including, but not limited to, business damage, consequential damage, loss of profit and/or stagnation damage, missed savings and damage due to loss, destruction or mutilation of data.

15.6 If the User is liable for any (direct) damage, the User's liability is in any case limited to the amount paid out in the relevant case under the liability insurance(s) taken out by the User, plus the amount of the deductible. in accordance with the relevant applicable policy(ies), but without prejudice to the provisions of the last sentence of this paragraph. Copies of the current policy(ies) with conditions are available for inspection at the User's office. If, for whatever reason, no payment is made under the aforementioned insurance, any liability of the User will be limited to a maximum of the amount that the Client has paid to the User in the year in which the damaging event took place, with a maximum of € 5.000 per year. event and a maximum of € 15.000 per year, whereby a series of related events counts as one event.

15.7 The limitations of the User's liability included in this article do not apply if the damage is demonstrably due to intent or gross negligence on the part of the User.

15.8 If and to the extent that the Client has insured any risk associated with the Agreement, he is obliged to claim any damage under that insurance and to indemnify the User against claims for recovery from the insurer.

15.9 The provisions of this article as well as all other limitations and exclusions of liability stated in these General Terms and Conditions also apply to the benefit of all (legal) persons used by the User in the performance of the Agreement.

15.10 The Client is always liable for damage to and loss of Products delivered to it under retention of title.

Article 16. Force majeure

16.1 The User is not obliged to fulfill any obligation towards the Client if it is prevented from doing so as a result of a circumstance that is not attributable to its fault, nor for which it is responsible under the law, a legal act or generally accepted views.

16.2 In these General Terms and Conditions, force majeure means, in addition to what is understood in law and case law, all external causes, foreseen or unforeseen, over which the User has no influence, but as a result of which the User is unable to fulfill its obligations. In this context, force majeure is the situation in which, beyond the control of the User, the network and/or telephone connection and/or internet connection that the Client uses no longer works (sufficiently) and the situation in which the hardware supplier or the Client's provider places updates. and/or does not maintain necessary updates, with the result that the User's system no longer works or does not function properly. The user will only announce any malfunctions and maintenance (in its own network and the lines to the control rooms) via https://status.x-guard.nl/. It is the Client's responsibility to subscribe to this for relevant notifications.

16.3 The User is entitled to suspend its obligations under the Agreement during the period that force majeure continues.

16.4 If the force majeure situation continues for longer than six (6) months, each of the Parties is entitled to terminate the Agreement in writing in whole or in part, insofar as the force majeure situation justifies this, without any obligation to compensate the other party for damages. In such a case, however, the Client is still obliged to purchase and pay for the Products it has ordered and already produced, as well as to pay for the Products already in its possession but not paid for.

16.5 The parties will inform each other as soon as possible of a (impending) force majeure situation.

Article 17. Applicable law / disputes

17.1 These General Terms and Conditions and the quotations and Agreements to which they are declared applicable are governed exclusively by Dutch law.

17.2 All disputes, including those that are only considered as such by one of the Parties, that may arise as a result of a quotation or an Agreement or these General Terms and Conditions, will be submitted to the competent (ordinary) court in accordance with the law. the district of the User's place of business.

17.3 If any provision of these General Terms and Conditions conflicts with any mandatory legal provision, the provision in question will lapse and will be replaced by a legally permissible comparable provision to be determined by the User. For the rest, the General Terms and Conditions remain in effect.

Article 18. Inscriptions

18.1 The headings to the articles of these General Terms and Conditions have no independent meaning, either with regard to their content or their interpretation; they only serve to improve readability.

Hengelo, September 26, 2022