These General Terms and Conditions of the Dutch Thuiswinkel Organization (hereinafter referred to as: Thuiswinkel.org) have been drawn up in consultation with the Consumers’ Association within the framework of the Self-Regulation Consultation Coordination Group (CZ) of the Social and Economic Council and will come into effect on 1 June 2014.
Table of contents:
Article 1 – Definitions
Article 2 – Identity of the entrepreneur
Article 3 – Applicability
Article 4 – The offer
Article 5 – The agreement
Article 6 – Right of withdrawal
Article 7 – Obligations of the consumer during the reflection period
Article 8 – Exercise of the right of withdrawal by the consumer and costs thereof
Article 9 – Obligations of the entrepreneur in case of revocation
Article 10 – Exclusion of right of withdrawal
Article 11 – The price
Article 12 – Compliance and additional warranty
Article 13 – Delivery and execution
Article 14 – Duration transactions: duration, termination and renewal
Article 15 – Payment
Article 16 – Complaints procedure
Article 17 – Disputes
Article 18 – Branch guarantee
Article 19 – Additional or different provisions
Article 20 – Modification of the General Terms and Conditions Home Shopping
Article 1 – Definitions
For the purposes of these terms and conditions:
- Additional agreement: an agreement whereby the consumer acquires products, digital content and / or services in connection with a distance contract and these goods, digital content and / or services are supplied by the operator or by a third party on the basis of an agreement between that third party and the operator;
- Withdrawal period: the period within which the consumer can exercise his right of withdrawal;
- Consumer: the natural person who is not acting for purposes related to his trade, business, craft or profession;
- Day: calendar day;
- Digital Content: data produced and delivered in digital form;
- Perpetual contract: a contract for the regular supply of goods, services and/or digital content over a specified period of time;
- Durable data carrier: any tool – including e-mail – that enables the consumer or entrepreneur to store information that is addressed to him personally in a way that future consultation or use during a period that is tailored to the purpose for which the information is intended, and that allows unaltered reproduction of the stored information;
- Right of withdrawal: the ability of the consumer within the cooling-off period to waive the distance contract;
- Entrepreneur: the natural or legal person who is a member of Thuiswinkel.org and offers (access to) digital content and/or services at a distance to consumers;
- Distance contract: a contract that is concluded between the trader and the consumer within the framework of an organized system for distance selling of products, digital content and/or services, whereby up to and including the conclusion of the contract, exclusive or joint use is made of one or more means of distance communication;
- Model withdrawal form: the European model withdrawal form included in Annex I of these conditions; Annex I does not need to be made available if the consumer does not have a right of withdrawal with regard to his order;
- Technique for distance communication: means that can be used for concluding a contract, without the consumer and entrepreneur having to be together in the same room at the same time.
Article 2 – Identity of the entrepreneur
Name entrepreneur: StudioFG
Acting under the name/names:
- CartBuildr
Business address:
van Galenstraat 41
2518EN The Hague
The Netherlands
Telephone number: +31615329623
Accessibility:
From Monday to Friday from 09.00 to 17.00 hours
E-mail address:
Chamber of Commerce number: 63906333
VAT number: NL002101734B49
Article 3 – Applicability
- These general terms and conditions apply to every offer of the entrepreneur and to every distance contract concluded between entrepreneur and consumer.
- Before the distance contract is concluded, the text of these general conditions will be made available to the consumer. If this is not reasonably possible, the entrepreneur before the distance contract is concluded will indicate how the terms and conditions can be viewed by the entrepreneur and that they will be sent to the consumer free of charge as soon as possible at the consumer’s request.
- If the distance contract is concluded electronically, contrary to the previous paragraph and before the distance contract is concluded, the text of these terms and conditions electronically to the consumer be made available in such a way that the consumer in a simple manner can be stored on a durable medium. If this is not reasonably possible, prior to the conclusion of the distance contract, it will be indicated where the general terms and conditions can be viewed electronically and that they will be sent electronically or otherwise free of charge at the consumer’s request.
- In the event that in addition to these general conditions also specific product or service conditions apply, the second and third paragraphs will apply by analogy and in case of conflicting conditions, the consumer can always invoke the applicable provision that is most favorable to him.
Article 4 – The offer
- If an offer has a limited period of validity or is made subject to conditions, this will be explicitly stated in the offer.
- The offer contains a complete and accurate description of the offered products, digital content and/or services. The description is sufficiently detailed to enable the consumer to make a proper assessment of the offer. If the entrepreneur uses images, these are a true representation of the products, services and / or digital content. Obvious mistakes or obvious errors in the offer do not bind the entrepreneur.
- Each offer contains such information that it is clear to the consumer what rights and obligations are attached to the acceptance of the offer.
Article 5 – The agreement
- The agreement is concluded, subject to the provisions of paragraph 4, at the time of acceptance by the consumer of the offer and compliance with the conditions set.
- If the consumer has accepted the offer electronically, the trader will immediately confirm receipt of acceptance of the offer electronically. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer may dissolve the agreement.
- If the agreement is concluded electronically, the trader will take appropriate technical and organizational measures to secure the electronic transfer of data and will ensure a secure web environment. If the consumer is able to pay electronically, the entrepreneur will take appropriate security measures.
- The entrepreneur may, within the legal framework – to inform the consumer whether the consumer can meet his payment obligations, as well as all those facts and factors that are important for a responsible conclusion of the distance contract. If, on the basis of this investigation, the entrepreneur has good grounds not to enter into the agreement, he is entitled to refuse an order or request, stating reasons, or to attach special conditions to the implementation.
- At the latest upon delivery of the product, service or digital content to the consumer, the trader will send the following information in writing or in such a way that the consumer in an accessible way can be stored on a durable medium: a. the visiting address of the establishment of the entrepreneur where the consumer can lodge complaints;
b. the conditions under which and the manner in which the Consumer can exercise the right of withdrawal, or a clear notification concerning the exclusion of the right of withdrawal;
c. the information about guarantees and existing after-sales service;
d. the price including all taxes of the product, service or digital content; to the extent applicable, the costs of delivery; and the method of payment, delivery or performance of the distance contract;
e. the requirements for termination of the agreement if the agreement has a duration of more than one year or is of indefinite duration;
f. if the consumer has a right of withdrawal, the model withdrawal form. - In the case of a long-term transaction, the provision in the previous paragraph only applies to the first delivery.
Article 6 – Right of withdrawal
For products:
- The consumer can dissolve an agreement regarding the purchase of a product during a reflection period of 14 days without giving reasons. The entrepreneur may ask the consumer for the reason for withdrawal, but does not oblige the consumer to state his reason(s).
- The cooling-off period referred to in paragraph 1 shall commence on the day after the consumer, or a third party designated in advance by the consumer, who is not the carrier, has received the product, or: a. if the consumer has ordered several products in the same order: the day on which the consumer, or a third party designated by him, has received the last product. The Entrepreneur may, provided he has clearly informed the Consumer about this prior to the ordering process, refuse an order for multiple products with a different delivery time.
b. if the delivery of a product consists of several shipments or parts: the day on which the Consumer, or a third party designated by him, has received the last shipment or the last part;
c. in the case of agreements for regular delivery of products during a certain period: the day on which the Consumer, or a third party designated by him, has received the first product.
In the case of services and digital content that is not supplied on a material carrier:
- The consumer can terminate a service contract and a contract for the supply of digital content that is not supplied on a tangible medium for 14 days without giving reasons. The trader may ask the consumer for the reason for withdrawal, but does not oblige the consumer to state his reason(s).
- The cooling-off period referred to in paragraph 3 starts on the day following the conclusion of the contract.
Extended cooling-off period for products, services and digital content not supplied on a tangible medium in the event of failure to inform about the right of withdrawal:
- If the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model withdrawal form, the cooling-off period expires twelve months after the end of the original, in accordance with the previous paragraphs of this article determined cooling-off period.
- If the trader has provided the consumer with the information referred to in the previous paragraph within twelve months after the starting date of the original cooling-off period, the cooling-off period shall expire 14 days after the day on which the consumer has received that information.
Article 7 – Obligations of the consumer during the reflection period
- During the reflection period, the consumer will handle the product and packaging with care. He will only unpack or use the product to the extent necessary to determine the nature, characteristics and operation of the product. The starting point here is that the consumer may only handle and inspect the product as he would be allowed to do in a store.
- The consumer shall only be liable for any reduction in value of the product resulting from a manner of handling the product that goes beyond what is permitted in paragraph 1.
- The consumer is not liable for any reduction in the value of the product if the entrepreneur has not provided him with all legally required information about the right of withdrawal before or at the conclusion of the contract.
Article 8 – Exercise of the right of withdrawal by the consumer and costs thereof
- If the consumer exercises his right of withdrawal, he shall report this to the trader within the cooling-off period by means of the model withdrawal form or in another unequivocal manner.
- As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the consumer shall return the product, or hand it over to (an authorized representative of) the entrepreneur. This does not have to be done if the entrepreneur has offered to collect the product himself. The consumer has in any case observed the return period if he returns the product before the cooling-off period has expired.
- The consumer shall return the product with all delivered accessories, if reasonably possible in original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.
- The risk and burden of proof for the correct and timely exercise of the right of withdrawal lies with the consumer.
- The consumer bears the direct costs of returning the product. If the entrepreneur has not reported that the consumer has to bear these costs or if the entrepreneur indicates to bear the costs himself, the consumer does not have to bear the costs of returning the product.
- If the consumer withdraws after having first expressly requested that the performance of the service or the supply of gas, water or electricity not made ready for sale in a limited volume or set quantity commences during the cooling-off period, the consumer owes the entrepreneur an amount that is proportional to that part of the commitment that the entrepreneur has fulfilled at the time of withdrawal, compared to the full fulfilment of the commitment.
- The consumer shall not bear any costs for the performance of services or the supply of water, gas or electricity, which are not made ready for sale in a limited volume or quantity, or for the supply of district heating, if: a. the trader has not provided the consumer with the legally required information concerning the right of withdrawal, the reimbursement of costs in the event of withdrawal or the model withdrawal form, or;
b. the consumer has not expressly requested the commencement of the performance of the service or the supply of gas, water, electricity or district heating during the cooling-off period. - The consumer does not bear any costs for the full or partial supply of digital content not supplied on a tangible medium, if: a. he has not expressly agreed to the commencement of the performance of the contract before the end of the cooling-off period prior to its delivery;
b. he has not acknowledged losing his right of withdrawal when giving his consent; or
c. the entrepreneur has failed to confirm this statement from the consumer. - If the consumer makes use of his right of withdrawal, all additional agreements will be dissolved by operation of law.
Article 9 – Obligations of the entrepreneur in case of withdrawal
- If the Entrepreneur’s notification of withdrawal by the Consumer is made possible electronically, he shall send an acknowledgement of receipt without delay after receipt of this notification.
- The Entrepreneur shall reimburse all payments made by the Consumer, including any delivery costs charged by the Entrepreneur for the returned product, without delay but within 14 days following the day on which the Consumer notifies him of the withdrawal. Unless the Entrepreneur offers to collect the product himself, he may wait until he has received the product or until the Consumer demonstrates that he has returned the product, whichever time is earlier.
- The entrepreneur uses the same means of payment that the consumer has used for the refund, unless the consumer agrees to another method. The refund shall be free of charge for the consumer.
- If the consumer has opted for a more expensive method of delivery than the cheapest standard delivery, the proprietor does not have to reimburse the additional costs for the more expensive method.
Article 10 – Exclusion of right of withdrawal
The entrepreneur can exclude the following products and services from the right of withdrawal, but only if the entrepreneur has clearly stated this in the offer, at least in time for the conclusion of the agreement:
- Products or services whose price is subject to fluctuations in the financial market over which the Entrepreneur has no influence and which may occur within the withdrawal period.
- Contracts concluded during a public auction. Under a public auction is understood a sales method in which products, digital content and / or services are offered by the entrepreneur to the consumer who is personally present or has the opportunity to be personally present at the auction, under the direction of an auctioneer, and where the successful bidder is obliged to purchase the products, digital content and / or services;
- Service agreements, after full execution of the service, but only if: a. the execution has started with the explicit prior consent of the consumer; and
b. the consumer has declared that he loses his right of withdrawal as soon as the entrepreneur has fully performed the contract; - Package tours as referred to in Section 7:500 of the Dutch Civil Code and passenger transport agreements;
- Service contracts for the provision of accommodation, if the contract provides for a specific date or period of performance and other than for residential purposes, goods transport, car rental services and catering;
- Agreements relating to leisure activities, if the agreement provides for a specific date or period of performance thereof;
- Products manufactured to the consumer’s specifications, which are not prefabricated and which are manufactured on the basis of the consumer’s individual choice or decision, or which are clearly intended for a particular person;
- Products that spoil quickly or have a limited shelf life;
- Sealed products that are not suitable for return for reasons of health protection or hygiene and whose seal has been broken after delivery;
- Products which, by their nature, have been irrevocably mixed with other products after delivery;
- Alcoholic beverages of which the price was agreed upon when the agreement was concluded, but of which the delivery can only take place after 30 days, and of which the actual value depends on fluctuations in the market that are beyond the Entrepreneur’s control;
- Sealed audio, video recordings and computer software, of which the seal has been broken after delivery;
- Newspapers, magazines or journals, with the exception of subscriptions to these;
- The delivery of digital content other than on a material carrier, but only if: a. the execution has started with the explicit prior consent of the consumer; and
b. the consumer has declared that he thereby loses his right of withdrawal.
Article 11 – The price
- During the period of validity stated in the offer, the prices of the products and/or services offered will not be increased, except for price changes due to changes in VAT rates.
- Contrary to the previous paragraph, the Entrepreneur may offer products or services whose prices are subject to fluctuations in the financial market and on which the Entrepreneur has no influence, with variable prices. This obligation to fluctuate and the fact that any prices mentioned are target prices, are mentioned in the offer.
- Price increases within 3 months after the conclusion of the agreement are only allowed if they are the result of statutory regulations or provisions.
- Price increases from 3 months after the conclusion of the contract are only allowed if the entrepreneur has stipulated this and: a. they are the result of statutory regulations or provisions; or
b. the consumer is authorized to terminate the agreement as of the day on which the price increase takes effect. - The prices mentioned in the offer of products or services are inclusive of VAT.
Article 12 – Fulfilment of the agreement and extra guarantee
- The entrepreneur guarantees that the products and / or services meet the agreement, the specifications stated in the offer, the reasonable requirements of reliability and / or usability and the date of the conclusion of the agreement existing legal provisions and / or government regulations. If agreed, the entrepreneur also guarantees that the product is suitable for other than normal use.
- An additional guarantee provided by the entrepreneur, his supplier, manufacturer or importer never limits the legal rights and claims that the consumer can assert against the entrepreneur on the basis of the agreement if the entrepreneur has failed to fulfill his part of the agreement.
- Extra guarantee is understood to mean any commitment of the Entrepreneur, his supplier, importer or producer in which the Entrepreneur grants the Consumer certain rights or claims that go beyond what the Consumer is legally obliged to in the event that the Entrepreneur has failed in the performance of his part of the contract.
Article 13 – Delivery and execution
- The entrepreneur will take the utmost care in receiving and executing orders of products and in assessing applications for the provision of services.
- The place of delivery is the address that the consumer has made known to the entrepreneur.
- Subject to what is stated in article 4 of these general terms and conditions, the entrepreneur will execute accepted orders expeditiously but at the latest within 30 days, unless another delivery period has been agreed. If delivery is delayed, or if an order is not or only partially carried out, the consumer will receive notification of this no later than 30 days after the order was placed. In that case, the consumer has the right to dissolve the agreement free of charge and entitled to any compensation.
- After dissolution in accordance with the previous paragraph, the entrepreneur will immediately refund the amount paid by the consumer.
- The risk of damage and/or loss of products rests with the entrepreneur up to the moment of delivery to the consumer or a representative appointed in advance and made known to the entrepreneur, unless expressly agreed otherwise.
Article 14 – Duration transactions: duration, termination and extension
Cancellation:
- The consumer may contract for an indefinite period of time and that extends to the regular delivery of products (including electricity) or services, terminate at any time subject to agreed termination rules and a notice of up to one month.
- The consumer may contract for an indefinite period and that extends to the regular delivery of products (including electricity) or services, at any time at the end of the fixed term denounce the agreed termination rules and a notice of up to one month.
- The consumer can in the previous paragraphs mentioned agreements: a. terminate at any time and not be limited to termination at a specific time or in a specific period;
b. terminate at least in the same way as they have been entered into by the consumer;
c. always terminate with the same notice as the entrepreneur has stipulated for himself.
Extension:
- A contract that is entered into for a definite period and that extends to the regular delivery of products (including electricity) or services, may not be tacitly extended or renewed for a definite period.
- Contrary to the previous paragraph, a fixed-term contract that has been concluded for the regular delivery of daily news and weekly newspapers and magazines may be tacitly renewed for a fixed period of up to three months, if the consumer this extended contract at the end of the extension may terminate with a notice of up to one month.
- A fixed-term contract that has been concluded for the regular delivery of products or services, may only be tacitly extended for an indefinite period if the consumer may terminate at any time with a notice not exceeding one month. The notice period is up to three months if the agreement extends to the regular delivery of daily newspapers, news and weekly newspapers and magazines, but less than once a month.
- An agreement with a limited duration to the regular delivery of newspapers, news and weekly newspapers and magazines (trial or introductory subscription) is not tacitly continued and ends automatically at the end of the trial or introductory period.
Duration:
- If a contract has a duration of more than one year, the consumer after one year of the agreement at any time with a notice of up to one month, unless the reasonableness and fairness resisting termination before the end of the agreed period.
Article 15 – Payment
- Unless otherwise stipulated in the agreement or additional conditions, the amounts owed by the consumer must be paid within 14 days after the start of the cooling-off period, or in the absence of a cooling-off period within 14 days after the conclusion of the agreement. In the case of an agreement to provide a service, this period commences on the day after the consumer has received the confirmation of the agreement.
- When selling products to consumers, the consumer may never be obliged to pay more than 50% in advance in general terms and conditions. If an advance payment has been stipulated, the consumer may not assert any rights regarding the execution of the order or service(s) in question before the stipulated advance payment has been made.
- The consumer has the duty to report any inaccuracies in the payment details provided or stated to the entrepreneur without delay.
- If the consumer does not meet his payment obligation(s) on time, he will owe the statutory interest on the amount still owed after he has been made aware of the late payment by the entrepreneur and the entrepreneur has given the consumer a period of 14 days to still meet his payment obligations, after the failure to pay within this 14-day period, and the entrepreneur is entitled to charge the extrajudicial collection costs he has incurred. These collection costs amount to a maximum of: 15% on outstanding amounts up to € 2,500; 10% on the next € 2,500 and 5% on the next € 5,000 with a minimum of € 40. The entrepreneur can deviate from these amounts and percentages for the benefit of the consumer.
Article 16 – Complaints procedure
- The entrepreneur has a sufficiently publicized complaints procedure and handles the complaint in accordance with this complaints procedure.
- Complaints about the implementation of the agreement must be submitted to the entrepreneur within a reasonable time after the consumer has discovered the defects, complete and clearly described.
- Complaints submitted to the Entrepreneur shall be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the trader will respond within the period of 14 days with a notice of receipt and an indication when the consumer can expect a more detailed answer.
- A complaint about a product, service or the trader’s service can also be submitted via a complaints form on the consumer page of the Thuiswinkel.org website www.thuiswinkel.org. The complaint is then sent both to the trader in question and to Thuiswinkel.org.
- The consumer must give the trader at least 4 weeks to resolve the complaint in mutual consultation. After this period, a dispute arises that is subject to dispute resolution.
Article 17 – Disputes
- Agreements between the Entrepreneur and the Consumer to which these General Terms and Conditions relate shall be governed exclusively by Dutch law.
- Disputes between a consumer and a trader over the conclusion or performance of contracts relating to products and services to be supplied or to be supplied by this trader can, subject to the provisions set out below, be submitted by either the consumer or the trader to the Thuiswinkel Disputes Committee, P.O. Box 90600, 2509 LP in The Hague (www.sgc.nl).
- A dispute will only be dealt with by the Disputes Committee if the consumer has first submitted his complaint to the trader within a reasonable period of time.
- If the complaint does not lead to a solution, the dispute must be submitted to the Disputes Committee in writing or in another form to be determined by the Committee no later than 12 months after the date on which the consumer submitted the complaint to the proprietor.
- If the consumer wants to submit a dispute to the Geschillencommissie, the entrepreneur is bound by this choice. Preferably the consumer first reports this to the entrepreneur.
- If the entrepreneur wants to submit a dispute to the Geschillencommissie, the consumer within five weeks after a written request made by the entrepreneur, in writing to pronounce whether he wants this or wants the dispute to be dealt with by the competent court. If the trader does not hear the consumer’s choice within the period of five weeks, then the trader is entitled to submit the dispute to the competent court.
- The Dispute Resolution Committee pronounces on the conditions as laid down in the regulations of the Dispute Resolution Committee (www.degeschillencommissie.nl/over-ons/de-commissies/2404/thuiswinkel). The decisions of the Geschillencommissie are made by means of a binding advice.
- The Geschillencommissie will not deal with a dispute or discontinue treatment if the entrepreneur has been granted a suspension of payment, is in a state of bankruptcy or has actually ceased his business activities, before a dispute has been dealt with by the committee at the session and a final verdict has been given.
- If, in addition to the Thuiswinkel Disputes Committee, another disputes committee that is recognized or affiliated with the Stichting Geschillencommissies voor Consumentenzaken (SGC) or the Klachteninstituut Financiële Dienstverlening (Kifid) is competent, the Thuiswinkel Disputes Committee is preferably competent for disputes concerning primarily the method of distance selling or service provision. For all other disputes, the other recognized disputes committee affiliated with the SGC or Kifid.
Article 18 – Branch guarantee
- Thuiswinkel.org guarantees the observance of the binding advice of the Thuiswinkel Disputes Committee by its members, unless the member decides to submit the binding advice to the court for review within two months after it has been sent. This guarantee is revived, if the binding advice after review by the judge has remained in force and the judgment that shows this has become final and conclusive. Up to a maximum amount of €10.000,- per binding advice, this amount will be paid to the consumer by Thuiswinkel.org. For amounts greater than €10,000,- per binding advice, €10,000,- will be paid out. For the excess, Thuiswinkel.org has a best-efforts obligation to ensure that the member complies with the binding advice.
- The application of this guarantee requires that the consumer makes a written appeal to Thuiswinkel.org and that he assigns his claim against the trader to Thuiswinkel.org. If the claim on the trader amounts to more than €10.000,-, the consumer is offered to transfer his claim to the extent that it exceeds the amount of €10.000,- to Thuiswinkel.org, after which this organization will request payment in court in his own name and at his own expense, in order to satisfy the consumer.
Article 19 – Additional or different provisions
Additional provisions or provisions deviating from these terms and conditions may not be to the detriment of the consumer and must be recorded in writing or in such a way that they can be stored by the consumer in an accessible manner on a durable data carrier.
Article 20 – Amendments to the Thuiswinkel General Terms and Conditions
- Thuiswinkel.org will not change these general terms and conditions except in consultation with the Consumentenbond.
- Amendments to these terms and conditions are only effective after they have been published in an appropriate manner, on the understanding that in the event of applicable amendments during the term of an offer, the provision most favourable to the consumer will prevail.
Thuiswinkel.org
www.thuiswinkel.org
Horaplant 20, 6717 LT Ede
P.O. Box 7001, 6710 CB Ede
Appendix I: Model revocation form
Model revocation form
(only fill in this form and return it if you want to revoke the agreement)
a. On: entrepreneur’s name
Entrepreneur’s geographic address
Entrepreneur’s fax number, if available
[ e-mail address or electronic address of entrepreneur]
b. I/We* hereby inform you that I/We* hereby give notice of our agreement concerning
the sale of the following products:
the provision of the following digital content: [digital content designation]*
the provision of the following service: [service designation], revoked/withdrawn
c. Ordered on/received on [date of order for services or receipt for products]
d. [Consumer(s) name]
e. Consumer(s) address
f. Consumer Signature(s)] (only if this form is submitted on paper)
- Delete what is not applicable or fill in what is applicable.
