General terms and conditions of sale and delivery of XXL Nutrition B.V. deposited at the Court of Commerce at Brabant under number 50014625
SECTION 1. GENERAL
1.1. These terms and conditions apply to all offers and agreements on the purchase/sale of articles and/or assignments and services of XXL Nutrition B.V..
1.2. Additions to or deviations from these terms and conditions must be agreed in writing and apply solely to that agreement for which they have been made.
1.3. The rights and duties arising from agreements between XXL Nutrition B.V. and the other party cannot be transferred by the other party to third parties unless XXL Nutrition B.V. gives its written consent.
1.4. XXL Nutrition B.V. does not accept any other general terms and conditions, including those of the other party, unless an alternative agreement has been concluded in writing and confirmed by XXL Nutrition B.V..
SECTION 2. OFFERS
2.1. All offers are entirely free of obligation and are valid as long as stocks last. An offer which includes a deadline can nevertheless be withdrawn by XXL Nutrition B.V., even after receipt of the order, provided that this is done within five working days of receipt of that order.
2.2. In official lists or on the Internet (web site), quotations and other documents, stated quantities, weights, measures, prices and such like are for information purposes only. Although the main features of products are stated as accurately as possible, they only give an approximate indication and are not binding on XXL Nutrition B.V..
SECTION 3. AGREEMENTS
3.1. An agreement is not regarded as legally valid until XXL Nutrition B.V. has confirmed the order in writing or has started to carry out the order. The content of the agreement is determined by the quotation and/or assignment confirmation from XXL Nutrition B.V. and these general terms and conditions.
3.2. If, after the assignment is issued, another assignment is passed on, the originally agreed delivery date expires.
3.3. The other party and XXL Nutrition B.V. agree explicitly that a valid agreement is created through the use of electronic means of communication as soon as the terms and conditions set out in sections 3.1 and 3.2 are met. In particular, the absence of a signature takes nothing away from the binding force of the offer and the acceptance thereof.
3.4. There is no minimum order and all orders above €50.00 are shipped free of charge. For orders below €50.00 we charge €4.95 for shipment costs.
SECTION 4. PRICES
4.1. All quotations and prices issued by XXL Nutrition B.V. are given in euros and include VAT and other costs falling within the scope of the agreement, such as levies.
4.2. Delivery costs are not included in the price unless otherwise stated.
4.3. If, after the conclusion of the agreement, there is a change in the prices of materials, taxes, and/or other factors which partly determine the price of the goods, XXL Nutrition B.V. is entitled to implement these price changes. Price changes of more than 10% give the other party the right to terminate the agreement, provided that the other party does so in writing within seven days of receipt of the notification in question. A termination as stated above does not give the other party any right to compensation for any loss.
SECTION 5. PAYMENT
5.1. With orders via the Internet site it is possible to pay with the aid of the payment options stated on the site. The terms and conditions of the card issuer or bank in question apply to payments made using a credit card or electronic payment method issued by a third party. Payments by means of invoices, subject to explicit agreement, are made within seven days of the invoice date.
5.2. The other party is in default de jure after the expiry of the payment deadline in subsection 1 of this section without notice of default being required, irrespective of whether or not the overrun can be attributed to the other party.
5.3. Without prejudice to its other due rights, XXL Nutrition B.V. is then entitled to charge interest of 1.5% a month or a part of a month on the outstanding amount, starting from the expiry date in question.
5.4. All extrajudicial and judicial costs incurred by XXL Nutrition B.V. within the context of a dispute with the other party, either as claimant or defendant, are charged to the other party.
5.5. Incoming payments serve as settlement for the oldest outstanding item and interest costs, even if the other party states otherwise in this regard.
SECTION 6. COOLING-OFF PERIOD AND CANCELLATION
6.1. The other party has the right to a cooling-off period of 30 days after the delivery of the product if the other party is a consumer and provided that the packaging is not broken. This right also ceases if the product is put to use. Companies are excluded from this right pursuant to the Distance Selling Act 2001. The other party (consumer) may return a product within the period mentioned above, and in such a case the other party only has to pay the return postage costs. Clearance sale products are not taken back.
6.2. Terms and conditions for the right of return: The product must not be used and must be in a suitable condition for re-sale. (The consumer has to be able to look at the product, but must not use it). It has to be returned undamaged, complete, and in the original packaging. This is particularly important in the case of cardio apparatus. With cardio apparatus the rule is that if the client assembles it and thereby causes visible damage, we are unable to reimburse the product in full. This is because the product is no longer suitable for re-sale.
6.3. If the other party exercises the right of withdrawal as stated in the previous subsection and returns the product to XXL Nutrition B.V. unused, in the original packaging together with any supplied accessories, and without any wear and tear, XXL Nutrition B.V. will reimburse the other party within 30 days of receipt.
6.4. In the event of cancellation by companies, all costs incurred by XXL Nutrition B.V. in the context of the order or assignment together with the loss of profit can be claimed immediately, with a minimum of 10% of the principal sum plus as far as necessary, any loss suffered by XXL Nutrition B.V. as a result of the cancellation.
SECTION 7. DELIVERY DATE, DELIVERY, AND RISK
7.1. In principle, XXL Nutrition B.V. makes every effort to ensure that orders placed by 18.00 on a working day are shipped that same day. The delivery date in the agreed offer and/or assignment confirmation, as the case may be, does not constitute a strict deadline and is stated merely as an approximate indication, even if the other party explicitly accepts this delivery date.
7.2. If the other party is not at home at the time of delivery, the goods are offered again the next day. In both cases the transporter leaves a note stating that the delivery can be collected at the post office.
7.3. Different terms and conditions may apply to deliveries abroad.
7.4. The stated or agreed delivery date is extended anyway automatically, but not exclusively, for the period(s) during which:
- There is a delay in the manufacture and/or shipment and/or any other circumstance temporarily affecting the execution, irrespective of whether or not this can be attributed to XXL Nutrition B.V..
- The other party falls short in one or more of its duties towards XXL Nutrition B.V. or there is a well-founded fear that it will fall short, irrespective of whether or not the reasons for this are well-founded.
- The other party makes it impossible for XXL Nutrition B.V. to carry out the agreement; this situation arises, for example, if the other party fails to announce the place of delivery.
7.5. The other party must take possession of and check the goods purchased from XXL Nutrition B.V. (see guarantee). If the other party refuses to take possession of these goods or if it emerges that delivery is not possible, XXL Nutrition B.V. will store the goods at the expense and risk of the other party. The other party is charged for the storage. XXL Nutrition B.V. will make a specific performance claim, but it reserves the right to terminate the agreement without recourse to the courts and without prejudice to its right to compensation.
7.6 If it is not possible to deliver an order through the fault of the client (e.g. wrong address/wrong name/not collected at the agreed location), we will charge a contribution of four euros towards shipment costs.
SECTION 8. EXECUTION OF THE AGREEMENT
8.1. XXL Nutrition B.V. will execute the agreement to the best of its discretion and ability and in accordance with high standards.
8.2. XXL Nutrition B.V. is entitled to subcontract the assignment, or parts of it, or to have the assignment, or parts of it, carried out by third parties not employed by XXL Nutrition B.V., and all this without the consent of the other party.
8.3. The other party is responsible for ensuring that all details, which XXL Nutrition B.V. states are necessary for the execution of the agreement or which the other party ought reasonably to realise that they are necessary, are given to XXL Nutrition B.V. on time. If the details required for the execution of the agreement are not given to XXL Nutrition B.V. on time, XXL Nutrition B.V. has the right to suspend the execution of the agreement.
SECTION 9. GUARANTEE/COMPLAINTS
9.1. XXL Nutrition B.V. guarantees that all items are suitable and legally permissible for the purposes for which they are intended and that they are in conformity with the agreed specifications.
9.2. With due observance of the provisions set out elsewhere in these terms and conditions, XXL Nutrition B.V. is responsible for the reliability and quality of the products which it supplies. If a product should happen to be unfit for use due to damage during the shipment or if it does not correspond to what has been ordered, the other party has the option of returning this product. The cost of returning articles is always charged to the other party.
9.3. The guarantees regarding the supplied items lie with the manufacturer of the articles in question.
9.4. The other party is obliged to read the manufacturer’s instructions and advice, which are included with the products, before using the supplied products.
9.5. It is not possible to lodge a complaint if:
- The supplied items show one or more imperfections or anomalies which fall within a reasonable tolerance.
- The items are used for another purpose than that for which they are normally intended or in the view of XXL Nutrition B.V. the items have been used, stored, or transported improperly.
- The damage has been caused by negligence on the part of the other party or because the other party has acted contrary to instructions, directions, and advice given by XXL Nutrition B.V..
- The other party has not fulfilled its duties towards XXL Nutrition B.V. (both financially and otherwise).
9.6. If the other party lodges a written complaint within five days of receipt and with due observance of what is stipulated in the agreement concerned and these general terms and conditions, and XXL Nutrition B.V. finds that this complaint is well-founded, XXL Nutrition B.V. will decide at its discretion either to replace all or some of the faulty items (the replaced items then become its own property) or to grant a reduction in price.
9.7. The submission of a complaint does not suspend the other party’s obligation to pay.
9.8. If consideration is given to a complaint outside the cases specified above, this is done entirely voluntarily and the other party cannot derive any rights from it.
SECTION 10. INSPECTION
XXL Nutrition B.V. inspects all items before delivery. The other party has the right, at its own expense, to inspect the items at the time and place set out by XXL Nutrition B.V..
SECTION 11. BREACH/TERMINATION/SUSPENSION
11.1. XXL Nutrition B.V. is entitled to terminate the agreement fully or partially with immediate effect and without recourse to the courts or to suspend the execution thereof, without prejudice to its other due rights (to observance and/or compensation), if:
- The other party acts contrary to any stipulation in the agreement between the parties.
- The other party passes away, asks for a suspension of payment, or issues a winding-up statement, or if a winding-up petition is filed or if any of the other party’s assets are seized.
11.2. The stipulations in subsection 1 of this section apply equally if the other party fails, in the view of XXL Nutrition B.V., to provide suitable assurances within seven days of being invited to do so in writing.
SECTION 12. RESERVATION OF OWNERSHIP
12.1. Supply by cash on delivery is carried out under reservation of ownership and the product becomes the property of the other party on full payment.
SECTION 13. LIABILITY
13.1. XXL Nutrition B.V. is not liable for damage arising as a result of any shortcoming in the fulfilment of its obligation(s) towards the other party. The fulfilment of the guarantee/complaint obligations as specified above in section 9 are considered to be the sole and exclusive form of compensation. Any other claim for compensation for whatever reason is excluded unless there is deliberate or gross negligence on the part of XXL Nutrition B.V. or its managerial staff.
13.2. XXL Nutrition B.V. is also not liable for malice or (gross) negligence on the part of (non-managerial) staff or others whose services it has engaged in the context of the execution of the agreement.
13.3. XXL Nutrition B.V. does not accept any liability for advice given by itself or on its behalf.
13.4. The other party must always give XXL Nutrition B.V. the opportunity to settle a complaint. Otherwise the claim for liability and the compensation is cancelled.
SECTION 14. CIRCUMSTANCES BEYOND ONE’S CONTROL
14.1. These general terms and conditions define circumstances beyond one’s control as any circumstance outside the will and through no fault of XXL Nutrition B.V., irrespective of whether or not this circumstance was foreseeable when the agreement was concluded, as a result of which XXL Nutrition B.V. cannot reasonably be expected to execute the contract. Such circumstances include war, government measures, lack of raw materials, any disruptions whatsoever to manufacture or transport, strike action, exclusion of shortage of staff, quarantine, epidemics, time lost through frost, shortcomings on the part of third parties whose services XXL Nutrition B.V. has engaged for the purpose of the execution of the agreement (such as late deliveries by suppliers), etc.
14.2. Circumstances beyond one’s control give XXL Nutrition B.V. the right either to terminate the agreement fully or partially or to suspend the fulfilment of its duties without being bound to pay compensation. The other party is still bound to pay for the part of the agreement already completed.
SECTION 15. PERSONAL DATA
SECTION 16. PARTIAL NULLITY
If any of the stipulations in this agreement with the other party are not legally valid or only partially legally valid, the other stipulations remain entirely in force. The invalid stipulations will be replaced by a suitable and valid ruling, which equates legally and effectively as closely as possible to the intention of the parties and the economic result for which they strived.
SECTION 17. PLACE OF OBSERVANCE, APPLICABLE LAW, AND AUTHORISED JUDGE
17.1. The business residence of XXL Nutrition B.V. is the place where the other party has to fulfil its duties towards XXL Nutrition B.V. unless this is opposed by compulsory stipulations.
17.2. All offers and agreements of XXL Nutrition B.V. are governed solely by Dutch law.
17.3. Any disputes which arise from the agreement concluded between the other party and XXL Nutrition B.V. or from further agreements which might result from it will be resolved by the judge authorised to that end.