Terms of service
GENERAL TERMS AND CONDITIONS OF USE AND CUSTOMER INFORMATION
1. APPLICATION OF THE TERMS AND CONDITIONS
1.1. The following terms and conditions (this “Agreement”) are valid for sales contracts which you conclude with XOUXOU GmbH (the “Seller” or “We”) via the website www.xouxou.com (the “Website”). Unless otherwise agreed, the inclusion of later terms and conditions is not valid if amended by the customer (“Customer” or “You”). Your use of the Website constitutes Your agreement to follow and be bound by this Agreement. We reserve the right to update or modify this Agreement at any time without prior notice. For this reason, we encourage you to review the Agreement whenever you use the Website.
2. CONDITIONS OF USE
2.1. All content, information and other materials featured, displayed, contained and available on the Website, including, but not limited to, all text, images, graphics, designs, illustrations photographs, pictures, audio, software and video clips, pages, screens, content arrangement and computer programs (collectively, “Materials”) are owned by or licensed to Seller and are protected by copyright, trademark, trade dress, patent and/or other intellectual property rights and applicable law.
2.2. No part of the Website and no Materials may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Seller’s express prior written consent.
2.3. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or with any other person’s use of the Website.
2.4. You may not use the Website or any Material for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity which infringes the rights of Seller or others.
3. CONCLUSION OF CONTRACT
3.1. Our offers in the Website are non-binding.
3.2. By placing an order through the Website, the Customer makes a binding offer to purchase the relevant product. Seller can accept the offer until the end of the third (3rd) Business Day following the day of the offer. For purposes of this Agreement, “Business Day” means any day other than a Saturday, Sunday or a day on which banks are authorized or required by law to close in the city of Berlin, Germany.
3.3. We will send the Customer a confirmation of receipt of the offer, which will not constitute acceptance of the Customer’s offer to purchase any of Seller’s products. The offer shall only be deemed accepted by Seller as soon as We notify our acceptance to the Customer by e-mail or upon dispatch of the goods. The purchase contract with the Customer is only concluded with our acceptance.
3.4. Every customer is entitled to revoke the offer and to return the goods in accordance with the terms and conditions for special cancellation and the return instructions given to the Customer on the Website. Subject to Section 12 of this Agreement, the Customer will be deemed to have accepted the goods if the Customer does not notify the Seller within three (3) Business Days counted from the delivery of the purchased goods to the Customer that the Customer wishes not to accept the goods. The Customer hereby acknowledges and agrees that three (3) Business Days is sufficient time for the Customer to have reasonable opportunity to inspect the goods and inform Seller of any non-conformities.
4. PAYMENT
4.1. The prices include sales tax. Shipping and packaging costs as well as customs duties and similar charges shall be borne by the Customer and shall be described in the invoice.
4.2. We only accept the methods of payment indicated within the framework of the ordering process through the Website.
4.3. Payment of the purchase price is due immediately upon conclusion of the purchase.
5. DELIVERY CONDITIONS, GOODS SHIPMENT AND SHIPPING COSTS
5.1. The periods and dates stated by us for the shipment of the goods are always approximate and are therefore non-binding estimates.
5.2. If the goods cannot be delivered due to external circumstances or if the goods cannot be delivered on time, we will notify the Customer within five (5) Business Days. In such case, We reserve the right to terminate the purchase and sale of the goods. In such case, the Seller shall refund the Customer immediately for any payments made to by the Customer to the Seller.
5.3. Unless otherwise agreed, the Seller shall determine, at its sole discretion, the form of shipment and the transportation procedure that will be used for delivery of the purchased goods, including, without limitation, the carrier company and any third-party service provider the Seller may use to fill any purchase orders.
5.4. We only owe the timely and proper delivery of the goods to the carrier and therefore the Seller is not responsible for delays caused by the carrier. A shipping arrival date stated by us is therefore non-binding.
5.5. The risk arising of accidental destruction, accidental damage or accidental loss of the good passes to the customer at the time at which the good is delivered to the customer or the Customer is in default of acceptance. Besides, in any other case, the risk is transferred when the goods are delivered to the customer by the carrier.
5.6. If the Seller incurs additional shipping costs due to the indication of a wrong delivery address, a wrong addressee or an impossibility of delivery of the goods, these additional costs will be borne and paid exclusively by the Customer.
5.7. For the orders of goods on sale or subject to discount codes or promotional periods, Seller will not be liable for payment or cover of any costs related to the return by the Customer of any such purchased goods. The Customer is, therefore, responsible for any return shipping duties for orders of sale items. Any duties and taxes are nonrefundable.
6. WARRANTY
6.1. As a consumer, you are requested to check the goods immediately upon delivery for completeness, obvious defects and transport damage and to notify us and the carrier of any complaints as soon as possible. The Customer will be deemed to have accepted the purchased goods if the Customer does not notify the Seller of any defects or non-conformities within three (3) Business Days counted from the delivery of the goods to the Customer.
7. LIABILITY
7.1. Except where prohibited by law, in no event will Seller be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if Seller has been advised of the possibility of such damages. If, however, Seller is found to be liable to You for any damage or loss which arises out of or is in any way connected with Your use of the Website or any of Seller’s products, Seller’s liability shall in no event exceed the greater of (1) the total amount paid by Customer to the Seller, or (2) US$50.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to You.
7.2. You acknowledge and agree that the Seller makes NO WARRANTY that the goods will be delivered in a timely, secure or error-free manner. You further acknowledge and agree that the Seller makes NO WARRANTY of any kind, implied, express or otherwise, including, but not limited to, non-infringement of third party rights, title, merchantability or fitness for a particular use, with regard to any of the goods offered on, or purchased through, the Website.
8. INDEMNITY
8.1. You agree to indemnify and hold Seller, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Seller by any third party due to or arising out of or in connection with Your use of the Website or of the goods purchased through the Website.
9. RIGHT OF TITLE
9.1. You can only exercise a right of retention if it concerns direct claims against the Seller arising from the contractual relationship set forth under this Agreement.
9.2. The goods shall remain property of the Seller until the purchase price has been fully paid.
10. PROMOTIONS AND DISCOUNTS
10.1. All offers for purchases are valid only while there are goods in stock. If products ordered at a discount are no longer available, We reserve the right to cancel the order and refund any outstanding amounts.
11. DATA PROTECTION
11.1. We may process and store the data relating to the respective purchase contracts insofar as this is necessary for the execution and handling of the purchase contract and as long as we are obliged to store this data by law.
11.2. We reserve the right to transmit the Customer's personal data to credit bureaus insofar as this is necessary for the purpose of a credit check, provided that the customer expressly agrees to this in individual cases. We will not pass on personal customer data to third parties without the express consent of the Customer unless we are legally obliged to do so.
12. RETURN POLICY
12.1. Right of Return.
12.1.1. Return Without Cause.
You have the right to return the purchased goods without cause within fourteen (14) calendar days counted from the date on which the goods are marked as delivered to You by the Seller, a third-party carrier engaged by the Seller, or any person responsible for any alternative delivery method chosen by the Seller in accordance with Section 5.3 of this Agreement (the “Delivery”). Upon Seller’s receipt of the aforementioned notice, You will be directed to the return instructions set forth on the Website and the Seller shall proceed to comply with the terms set forth in Section 12.2 below. For the avoidance of doubt, You must send a notification to the Seller informing the Seller of Your wish to exercise Your right of return before the expiry of the return period set forth in this Section 12.1 in order for the Seller to be required to comply with the terms set forth in Section 12.2 below.
12.1.2. Return For Cause
a) [In the event any of the purchased goods present defects within 30 days after Delivery] OR [In the event any of the purchased goods present defects after Delivery], which defects are not caused by Your improper handling of the purchased goods, and You wish to return the purchased goods, You shall notify the Seller within fourteen (14) calendar days counted from date on which (x) such defects become apparent or (y) should have been discovered by You, whichever is earlier, of Your intent to return such defective purchased goods to Seller. Upon the Seller’s receipt of the aforementioned notice, You may request, at Your sole discretion, that the Seller (i) exchange such purchased goods for goods of the same likeness and price; (ii) reimburse you in accordance with Section 12.2 below; or (iii) credit to You an amount equal to the purchase price of the purchased good, which credit You may use for any purchases on Seller’s Website within 60 days counted from the date on which You receive the credit. For the avoidance of doubt, the Seller only shall be required to comply with the terms set forth in this Section 12.1.2(a) if You send a notice to the Seller informing of Your wish to exercise Your right to return or exchange the purchased goods, as applicable, before the expiry of the return period set forth in this Section 12.1.2(b).
b) [In the event any of the purchased goods present defects within 30 days after Delivery] OR [In the event any of the purchased goods present defects after Delivery], which defects are not caused by Your improper handling of the purchased goods, and You wish to return the purchased goods, You shall notify the Seller within fourteen (14) calendar days counted from date on which (x) such defects become apparent or (y) should have been discovered by You, whichever is earlier, of Your intent to return such defective purchased goods to Seller. Upon Seller’s receipt of the aforementioned notice, You will be directed to the return instructions set forth on the Website and the Seller shall proceed to comply with the terms set forth in Section 12.2 below. For the avoidance of doubt, the Seller only shall be required to comply with the terms set forth in Section 12.2 below if You send a notice to the Seller informing of Your wish to exercise Your right to return the exchange goods before the expiry of the return period set forth in this Section 12.1.2(b).
12.2. Consequences of the withdrawal
Upon return of the purchased goods in accordance with Section 12.1.1, 12.1.2(a)(ii) or 12.1.2(b), We shall repay to You all payments received from You, minus delivery charges, We will use the same means of payment as You used in the original purchase transaction for such a refund, unless expressly agreed otherwise between You and the Seller. We may refuse to refund until You have returned the good or until you have provided evidence that You have returned the You shall return or deliver the goods to us immediately and in any event no later than fourteen (14) calendar days from the date on which You notify us of Your wish to return the purchased goods. This period shall be deemed to have been observed if you dispatch the goods before the expiry of the period of fourteen (14) days. You shall bear the direct costs of returning the goods when exercising Your return rights. You only need to pay for any loss in value of the goods if a test of the state, characteristics, and functioning of the goods shows that the loss in value is due to Your improper handling of them.
13. LINKS TO OTHER WEBSITES
13.1. The Website may contain links to other independent third-party websites. Such third-party websites are provided solely as a convenience to our customers and are not under Seller’s control. Seller is not responsible for and does not endorse the content of such third-party websites, including any information or materials contained on such websites.
14. ERRORS, INACCURACIES, AND OMISSIONS
14.1. Information on the Website may contain typographical errors, inaccuracies, or omissions that relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the website is inaccurate at any time without prior notice (including after you have submitted Your purchase order).
15. PRODUCT INFORMATION
15.1. The Seller’s products may have limited quantities and are subject to return or exchange only through the Website according to the return policy set forth therein.
15.2. Seller has made every effort to display as accurately as possible the colours and styles of the products that appear at the Website. The Customer acknowledges and agrees that Seller cannot guarantee the accuracy of the display of any color or style on the Customer’s computer or mobile device.
16. MISCELLANEOUS
16.1. Headings. The headings to the various sections of this Agreement have been inserted for convenient reference only and shall not modify, define, limit or expand the expressed provisions of this Agreement.
16.2. Effect of Invalidity; Severability. Should any part of this Agreement, for any reason, be declared invalid, such decision shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if this Agreement had been entered into with the invalid portion thereof eliminated. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid or unenforceable by a court of competent jurisdiction, such provision will be deleted from this Agreement and the Agreement will be construed to give full effect to the remaining provisions thereof. Furthermore, the court or arbitrator will modify the invalid or unenforceable provision to make it valid and enforceable to the fullest extent permitted by law.
16.3. No Continuing Waiver. The waiver by Seller of any breach of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach.
16.4. Entire Agreement. This Agreement and the Seller’s policies available on the Website contains and represents the entire agreement of the parties and supersedes all prior agreements, representations or understandings, oral or written, express or implied with respect to the subject matter hereof.
16.5. Governing Law. All issues and questions concerning the application, construction, validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.
16.6. Submission to Jurisdiction. The parties hereby agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort or otherwise, shall be brought in the United States District Court for the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State of Delaware) exclusively, and that any case of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court has been brought in an inconvenient form.
16.7. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY.
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