These Use Terms are a contract between you and us and govern your Xilab Service use. Agreeing to these Use Terms is a condition of any Xilab Service use. You signify your agreement to these Use Terms and are legally bound by them from the date on which you:
This is version 2.0 of these Use Terms and their effective date is 2018–12–05.
You agree that we may, in our sole discretion, amend these Use Terms at any time, in any way and from time to time. We will publish details of our proposed amendments to these Use Terms in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Use Terms and the date on which these proposed amendments will become effective. You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Use Terms regularly in the event that we do publish a notice of proposed changes. Your continued use of the Xilab Service (except where your continued use of Xilab Service is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Use Terms.
These Use Terms contains a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary, below, contains many of these words and phrases (others are set out in these Use Terms’ body and are designated by terms in quotation marks). We also apply certain rules when interpreting these Use Terms and the Interpretation Guide, which sets out these rules, is below.
These Use Terms shall continue to bind you for so long as you make use of Xilab Service.
In the event these Use Terms are terminated for any reason whatsoever, the following clauses shall survive termination and continue to bind you:
Our Website details the Xilab Service which, broadly, comprises the following components:
We grant you a limited and non-exclusive right to use the Xilab Service (subject to any other applicable licenses such as the GPL) solely for the purposes which the Xilab Service is intended for and as permitted by the licenses applicable to the Xilab Service components. This right is not transferable to any other person unless we agree. You agree that, except where the nature of the Xilab Service requires otherwise, each component of the Xilab Service constitutes a separate and distinct service, and we are not necessarily obliged to render two or more components of the Xilab Service as a single, indivisible service.
Our products are licensed under the GPL (click here to find out more about the GPL). When you purchase paid Products, you will receive access to a Support Service for those Products for a period of one year. You may renew the Support Service for your paid Products on the anniversary of your paid Products’ purchase. For more information about the Support Service, read below. Some of our Products have been contributed by 3rd Party service providers. These 3rd Party service providers may change from time to time and the Products they contribute may not always be available through the Xilab Service.
As we pointed out above, when you purchase paid Products, you will receive access to a Support Service developed to support the specific paid Products you have purchased. The Website contains more information about the specific Support Service you receive with each paid Product purchase. The corresponding Support Service is valid for 1 year from the date of your purchase, regardless of which paid Product you purchase, after which time the Support Service will come to an end. Support Services are only available to you and you may not transfer them to any other person without our express, written consent. We may refuse to give consent for this at our discretion.
When you purchase a Creative Digital Service (sold by piece or hours) you agree with the following points:
Xilab grants users a Content License in respect of Xilab’ Intellectual Property which forms part of the Services. To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) users may do so, provided that all trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed without alteration or modification and not in any manner obscured or removed. Users are further required, as a condition of this Content License, to clearly and expressly attribute Xilab as the Content’s source. Users acknowledge that they do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event Xilab revokes the Content License, users may no longer use the Content.
We may change any aspect of the Xilab Service on written notice to you. These changes may include discontinuing aspects of the Xilab Service or the Xilab Service in its entirety. In the event we do make any changes to any aspect of the Xilab Service, we will publish updated Xilab Service information which shall detail the –
Changes to the Xilab Service may, at our sole discretion, require consequential changes to fees payable for and delivery timeframes applicable to the aspects of the Xilab Service affected by the changes. We will similarly notify you of any such changes to fees payable or delivery timeframes.
4.6.1 Subscription & Download Fees
These purchases shall be paid in advance. By purchasing a Subscription, you authorize us to charge your payment method immediately and on a pre-pay basis for the Subscription period indicated. We may, in our sole discretion, suspend any aspect of the Xilab Service which you have not paid for.
To avoid a potential disruption to your Subscriptions, we offer automatic renewal, and it is enabled by default for all purchases. Unless you notify Xilab before the end of the applicable Subscription period that you want to cancel, your Subscription will automatically renew, and you authorize us to collect the then-applicable monthly or annual fee (which may change) for such Subscription (as well as any taxes that Xilab has the legal obligation to collect or pay) using any credit card or other payment mechanism we have on record for you. To cancel, you can remove your credit card from the My Account page.
4.6.2 Creative Digital Services
These purchases shall be paid in advance until an amount of 5000€, unless specifically defined during the contracting phase. For bigger amounts can be find common agreements, from time to time, defining a different payment schedule, which will be directly included in the final invoice.
We love to show off our work, so we reserve the right to display all aspects of our creative work, including sketches, work-in-progress designs and the completed project on our portfolio and in articles on websites, in magazine articles and in books.
You agree that the security of their Xilab Service user account is solely your responsibility. You further agree that –
Save as expressly set out in these Use Terms, we do not make any representation or give any warranties whatsoever in respect of the Xilab Service. If you are not, factually or legally, authorised to bind another person as our Customer to these Use Terms, you agree that you will be personally liable to Xilab for any amounts due to us in terms of these Use Terms or otherwise as a consequence of using the Xilab Service in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal Xilab Service use.
To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the Xilab Service and you use the Xilab Service at your own risk. You agree that neither we or our Associates shall be liable for any Losses which you may sustain however arising and whatever the cause, in particular pursuant to your or any 3rd Party’s use of, access to and/or interference with the Xilab Service. You also agree that our liability to you pursuant to these Use Terms shall furthermore be limited to the total amount of the fees you paid for your Xilab Service use.
You and any 3rd Parties using the Xilab Service or Website indemnify us and our Associates from any Losses, which may arise as a result of your or the 3rd Party’s unlawful conduct, wilful misconduct and/or gross negligence.
You acknowledge that from time to time the Xilab Service may be suspended, either in part or as a whole, for maintenance, repair and improvements. We agree, wherever reasonably possible, to give twenty-four (24) hours notice of suspension of the Xilab Service affected by the proposed suspension. Save as set out elsewhere in these Use Terms or the Support Policy, we shall not be liable for any Losses which may be sustained as a result of the suspension of the Xilab Service save, where applicable.
If any person is of the view that his, her or its rights have been infringed through unlawful Xilab Service use by any person, that person may address a complaint to Xilab which satisfies the following requirements and/or sets out the following information:
Notifications must be addressed to: Xilab Abuse – Email: email@example.com. We will investigate the complaint on receipt of a complete and properly formulated complaint notice and will take appropriate action, where necessary. Such action may include, but is not limited to, removing offending Content and/or taking appropriate steps against offending users or Customers, where appropriate. We may not be able to, or it may not be appropriate for us to, respond to or act on every complaint.
Subject to any other provision of these Use Terms providing for the remedy of any breach of any provision of these Use Terms, should either Party (“the Offending Party”) commit a breach of any provision of these Use Terms and fail to remedy such breach within 10 days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to:
in either event without prejudice to the Aggrieved Party’s right to claim damages. Either Party shall be entitled to summarily terminate these Use Terms in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Use Terms shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
These Use Terms shall be governed in all respects by and shall be interpreted in accordance with Dutch Law and you consent and submit to the jurisdiction of The Hague, Netherlands. You consent to the jurisdiction of the Regional Court and the Magistrates Court in respect of any claim arising out of or pertaining to these Use Terms or the Xilab Service even though any claim you may have against us exceeds the monetary jurisdiction of the Regional Court or the Magistrates Court, as the case may be.
You acknowledge that, from time to time, the Xilab Service may be suspended due to causes beyond our control which we refer to as Interruption Events. You agree that we will be relieved of our obligations in terms of these Use Terms during the period that the Interruption Event and its consequences continue, only to the extent we are reasonably prevented from fulfilling our obligations, and we shall not be liable for any Losses which you may suffer as a result. We will make reasonable efforts to notify you of an Interruption Event in writing as soon as we become reasonably aware of the Interruption Event. In the event that an Interruption Event exceeds 2 calendar months and in the event that neither we or our nominee are able to provide alternative services and/or facilities, either you or we may terminate these Use Terms and shall only remain liable for performance under these Use Terms which fell due immediately prior to the Interruption Event.
Users or, where appropriate, you shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Use Terms except with our prior written consent. We will not unreasonably withhold our consent.
We are entitled to cede, delegate, assign or otherwise transfer all or any of our rights, interests or obligations under and/or in terms of these Use Terms subject to us giving you reasonable written notice to that effect.
If any court which has jurisdiction finds any clause or term of these Use Terms to be unenforceable, then the Parties agree that the remaining terms and provisions of these Use Terms shall be deemed to be severable from the unenforceable provisions and shall continue in full force and effect unless such unenforceability goes to the root of these Use Terms, in which case these Use Terms shall terminate.
Any Party shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a post box number in the Netherlands, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change. All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being. A notice sent by one Party to another Party shall be deemed to be received:
Notwithstanding anything to the contrary contained in this Domicilium and Notices clause a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
You choose your physical address; postal address; facsimile number and email address which you supply to us when registering to use the Xilab Service as its domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Use Terms.
Xilab chooses the addresses and other contact details specified in our ECTA Disclosures section, below, for all communication purposes under these Terms, whether in respect of court process, notices or other documents or communications of whatsoever nature.
These Use Terms, as read with the documents referenced in these Use Terms, constitute the sole record of the agreement between the Parties in regard to its subject matter. No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in these Use Terms. No addition to, variation or consensual cancellation of these Use Terms, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties. No data message (as defined in ECTA), including an e-mail, SMS and recorded voice message, which you send to us shall amend these Use Terms or the rights and duties of the Parties in any manner unless the Parties expressly state, and specify the extent to which, the data message amends these Use Terms or the Parties’ rights and duties in any material respect. No indulgence which any of the Parties (“the Grantor”) may grant to any other (“the Grantee(s)”) shall constitute a waiver of any of the Grantor’s rights, who shall not be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future. The Parties undertake at all times to take all reasonable steps to implement and comply with these Use Terms.
In these Use Terms, headings are for convenience and are not intended to be used to interpret the Use Terms. If the Use Terms refers to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Use Terms will also be applicable to and binding on that Party’s liquidator or trustee, as the case may be. Unless these Use Terms indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Use Terms, shall not apply. Where in these Use Terms provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Use Terms or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties. The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example. Where these Use Terms specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Netherlands, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Netherlands. Generally speaking, references to a “day” are references to typical business days. Any reference to “business hours” shall be construed as being the hours between 09h00 (eight hours and thirty minutes) and 18h00 (seventeen hours) on any day. Any reference to time shall be based upon Dutch Standard Time; All annexures, addenda and amendments to these Use Terms form an integral part of these Use Terms and, therefore, our contract with you. The words and phrases in the Glossary and, where appropriate, elsewhere in these Use Terms bear the meanings assigned to them and related expressions bear corresponding meanings.
“3rd Party” means a person other than Xilab and a Customer; “Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable; “the Constitution” means Constitution of the Netherlands; “Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, graphics, videos or other images) including, but not limited to, what a Customer may have access to as part of, or through the Customer’s Service use; “Content License” means a personal, revocable, worldwide, royalty-free, non-commercial, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by these Use Terms and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent; “Customer” means the person contracting with us to use the Xilab Service subject to these Use Terms and is either –
“GPL” means the [GNU General Public License, version 2 (or later)] from the Free Software Foundation; “Intellectual Property” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or material capable of copyright protection and in which copyright subsists (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property; “Intellectual Property Rights” means legal or moral rights in Intellectual Property; “Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned; “Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Use Terms by reason of an Interruption Event; “Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties); “Parties” means Xilab and the Customer; “personal information” means the personal information as defined in the Promotion of Access to Information Act, 2 of 2000; “Products” means the Xilab plugins, themes and extensions which are made available through the Website and which are described in the Website; “Subscription” means any Xilab Service that is offered on a recurring basis for a designated period, whether free or paid. “Support Service” means our Product support and update service described on the Website; “Dutch Law” means all and any laws and regulations of the Netherlands, including but not limited to the Constitution, or any other legislative enactment or regulation in force from time to time applicable codes of conduct, as may be promulgated or amended from time to time; “use” bears its ordinary meaning and when used in the context of –
“user” means a person who is not a Customer and who uses the Xilab Service or the Website; “Use Terms” means these terms and conditions, as amended from time to time; “VAT” means Value-Added Tax or BTW for Netherlands; “Website” means the Xilab website located at https://xilab.co or such other websites as may be associated with and controlled by Xilab from time to time; “Xilab”, “us”, “we” and “our” means or are references to Xilab, a company duly registered and incorporated in accordance with the laws of the Netherlands and with kvk number 71496254; “Xilab” means the Content, Products and Support Service, either collectively or in any combination.