General Terms and Conditions McCluny
These General Terms and Conditions of Stichting Webshop Keurmerk were drawn up in consultation with the Consumers' Association within the framework of the Self-Regulation Coordination Group (CZ) of the Social and Economic Council and will take effect as from 1 June 2014. These General Terms and Conditions shall be used by all members of Stichting Webshop Keurmerk with the exception of financial services as referred to in the Financial Supervision Act (Wet Financieel Toezicht) and in so far as these services are supervised by the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten).
Table of Contents:
Article 1 - Definitions
Articele 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 at withdrawal
Article 10 - Exclusion of the right of withdrawal
Article 11 - The price
Article 12 - Performance and additional warranty
Article 13 - Delivery and execution
Article 14 - Duration transactions: duration, termination and renewal
Article 15 - Payment
Article 16 - Complaints
Article 17 - Disputes
Article 18 - Industry guarantee
Article 19 - Additional or different provisions
Article 20 - Amendments to the General Terms and Conditions of Stichting Webshop Keurmerk
Article 1 - Definitions
In deze voorwaarden wordt verstaan onder:
- Ancillary contract: a contract in which the consumer acquires products, digital content, and/or services as part of a distance contract, and these products, digital content, and/or services are supplied by the trader or a third party under the terms of a contract between that third party and the trader;
- Withdrawal period: the time limit for exercising the consumer's right to withdraw;
- Consumer: a natural person acting for reasons unrelated to his or her trade, business, craft, or profession;
- Day: the date in the calendar;
- Digital Content: information that is created and distributed in a digital format.
- Door-to-door contract: a contract that covers the delivery of goods, services, and/or digital content on a regular basis for a set length of time;
- Durable medium: any tool - including e-mail - that allows a consumer or business to store information addressed to him personally in a way that allows future consultation or use for a period of time appropriate to the information's intended purpose, and that allows for the unaltered reproduction of the stored information;
- Right of withdrawal: the consumer's right to cancel a distance contract during the cooling-off period.
- Entrepreneur: a natural or legal person who is a member of Stichting Webshop Keurmerk and provides products, (access to) digital content, and/or services to customers over the internet.
- Distance contract: an agreement between the entrepreneur and the consumer as part of an organized system for distance selling of products, digital content, and/or services, in which the entrepreneur and the consumer have exclusive or joint use of one or more means of distance communication until the conclusion of the agreement;
- Model withdrawal form: the European model withdrawal form, which can be found in Annex I of these Terms and Conditions;
- Distance communication technique: a method of establishing a contract without requiring the customer and the entrepreneur to be present in the same room at the same time;
Article 2 - The Entrepreneur's Personality
Den Uitvanck 15
Article 3 - Applicability
- These general terms and conditions apply to any offer made by the entrepreneur and any agreement formed between the entrepreneur and the consumer at a distance.
- The wording of these general terms will be made available to the customer prior to the conclusion of the remote agreement. If this is not reasonably possible, the entrepreneur will specify how the general terms can be read at the entrepreneur and that they will be supplied free of charge to the consumer as soon as possible, at the consumer's request, before the distant agreement is concluded.
- If the distance contract is concluded electronically, then, contrary to the preceding paragraph, the text of these general conditions may be made available to the consumer by electronic means prior to the conclusion of the distance contract in such a way that the consumer can easily store them on a durable data carrier. If this is not practically possible, prior to the conclusion of the distance contract, it will be stated where the general terms can be consulted electronically and that they will be delivered to the consumer free of charge, either electronically or in another manner, upon his request.
- If particular product or service conditions apply in addition to these general conditions, the second and third paragraphs apply mutatis mutandis, and the customer may always rely on the applicable provision that is most beneficial to him in the event of a conflict.
Article 4: The Proposal
- If an offer is only valid for a short time or is subject to constraints, this must be disclosed plainly in the offer.
- The offer includes a detailed and accurate description of the products, digital content, and/or services that are being provided. The description is sufficiently informative to allow the consumer to make an informed decision about the offer. Images are a true reflection of the products, services, and/or digital content offered if the entrepreneur uses them. The entrepreneur will not be bound by evident flaws or inaccuracies in the offer.
- Each offer contains sufficient information for the consumer to understand the rights and obligations associated with accepting the offer.
Article 5 - The Accord
- The contract is formed, subject to the terms of paragraph 4, when the consumer accepts the offer and complies with the conditions set forth therein.
- If the customer has accepted the offer electronically, the trader will acknowledge receipt of the offer electronically. The consumer has the right to cancel the contract as long as the entrepreneur has not acknowledged receipt of this acceptance.
- If the contract is made online, the entrepreneur will take adequate technical and organizational measures to ensure secure data transmission and a secure web environment. If the customer can pay electronically, the business will take adequate security precautions.
- The entrepreneur has the right to inform the consumer of his payment duties, as well as other data and criteria important to a successful conclusion of the distance contract, within the limits of the law. If the entrepreneur has good cause not to engage into the agreement as a result of this examination, he has the right to deny an order or application or to impose exceptional restrictions on its execution.
- The trader will send the consumer the following information, in writing or in such a way that the consumer can keep it in an accessible manner on a durable medium, no later than at the time of delivery of the goods, service, or digital content: a. the address of the trader's business establishment where the consumer can file a complaint; b. the conditions under which and how the consumer may exercise the right of withdrawal, or a clear statement regarding the right of withdrawal's exclusion; c. information on warranties and existing after-sales service; d. the price of the product, service, or digital content, including all taxes; if applicable, delivery costs; and the method of payment, delivery, or performance of the distance contract; e. the requirements for terminating the contract if it is for more than one year or is indefinite; f. the model form for withdrawal if the consumer has a right of withdrawal.
- In the case of a duration contract, the above paragraph only applies to the first delivery.
Article 6 - Right of withdrawal
- During a 14-day cooling-off period, a consumer can cancel a contract for the purchase of a goods without giving any reasons. The entrepreneur may inquire about the cause for withdrawal, but the consumer is not obligated to respond (s).
- The cooling-off period referred to in paragraph 1 begins the day after the consumer, or a third party designated by the consumer in advance and who is not the carrier, receives the product, or: a. if the consumer ordered multiple products in one order, the day the consumer, or a third party designated by him, receives the last product.The entrepreneur has the right to deny an order for several products with varying delivery times if he has properly notified the customer about this prior to the ordering procedure. b. if a product is delivered in several shipments or parts, the date on which the consumer, or a third party chosen by him, received the last shipment or portion; 5 c. the day on which the consumer, or a third party chosen by him, got the first product, in the case of contracts for regular delivery of products over a period of time. Services and digital material that aren't delivered on a physical medium:
- The consumer has the right to cancel a service contract as well as a contract for the delivery of digital content that is not delivered on a tangible media for at least 14 days without giving any explanation. The trader may inquire about the cause for the withdrawal, but the consumer is not obligated to respond (s).
- The cooling-off period indicated in paragraph 3 begins the day after the agreement is signed. Extended cooling-off period for items, services, and digital content that are not delivered on a tangible media if the consumer is unaware of their right to withdraw:
- The cooling-off period will expire twelve months after the end of the original cooling-off period determined in accordance with the previous paragraphs of this article if the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model withdrawal form.
- If the entrepreneur sent the consumer the information mentioned in the preceding paragraph within twelve months of the start date of the initial cooling-off period, the cooling-off period will end 14 days after the consumer received it.
Article 7 - Consumer obligations during the period of reflection
- The consumer will handle the product and package with care during the cooling-off phase. For hygiene reasons, the product packaging should not be opened. The essential premise is that the consumer is only allowed to handle and inspect the product as he would in a store.
- The consumer is only liable for depreciation in the product's worth caused by a method of treating it that goes beyond what is permitted in paragraph 1.
- If the entrepreneur fails to provide all legally required information on the right of withdrawal before or at the conclusion of the contract, the consumer is not liable for depreciation of the product.
Article 8 - The consumer's right to withdraw and the fees associated with it
- If the customer exercises his right of withdrawal, he must notify the business within the cooling-off period using the model withdrawal form or another clear method.
- The consumer returns the product or hands it over to (an authorized representative of) the entrepreneur as soon as feasible, but no later than 14 days after receiving the notification mentioned in paragraph 1. If the entrepreneur has offered to pick up the product himself, this isn't essential. If the consumer returns the merchandise before the cooling-off time expires, he has complied with the return period in any event.
- The consumer must return the product in its original state and packaging, if reasonably possible, and in accordance with the reasonable and explicit instructions supplied by the entrepreneur.
- The consumer bears the risk and bears the burden of evidence for the correct and timely exercise of the right of withdrawal.
- The consumer is liable for the product's direct return expenses. If the entrepreneur has not specified that the customer must bear these costs or if the entrepreneur indicates that he will bear the costs himself, the consumer is not required to bear them.
- If the consumer withdraws after first explicitly requesting that the performance of the service or the supply of gas, water, or electricity not made ready for sale in a limited volume or certain quantity begin during the withdrawal period, the consumer owes the entrepreneur an amount proportionate to the portion of the commitment that the entrepreneur has fulfilled at the time of withdrawal, as compared to the full performance of the commitment.
- If the customer does not bear any costs for the performance of services or the supply of water, gas, or electricity that is not made ready for sale in a limited volume or quantity, or for the delivery of district heating, the following conditions apply: 6 b. the consumer has not expressly requested the commencement of the performance of the service or supply of gas, water, electricity, or district heating during the cooling-off period, or the trader has not provided the consumer with the legally required information on the right of withdrawal, the reimbursement of costs in the event of withdrawal, or the model form for withdrawal, or
- The consumer shall not bear any costs for the full or partial delivery of digital content not supplied on a tangible medium, if: a. prior to its delivery, he has not expressly consented to the commencement of performance of the contract before the end of the cooling-off period;b. he did not acknowledge losing his right to withdraw while giving his consent; or c. the entrepreneur did not validate the consumer's declaration.
- If the consumer exercises his right of withdrawal, all subsequent agreements are automatically terminated.
Article 9 - Entrepreneurial Obligations in the Event of Withdrawal
- If the entrepreneur allows the consumer to submit a withdrawal notification electronically, he must give an acknowledgement of receipt of the notification as soon as practicable.
- Within 14 days of the consumer notifying him of the withdrawal, the entrepreneur should repay all payments paid by the consumer, including any delivery fees imposed by the entrepreneur for the returned product, without delay. Unless the entrepreneur offers to pick up the merchandise himself, he may defer payment until he receives it or until the consumer confirms that he has returned it, whichever comes first.
- Unless the consumer agrees to an alternative method, the entrepreneur will utilize the same mode of payment that the customer used for reimbursement. The consumer is not charged for the refund. 4. The entrepreneur is not required to return the higher costs for the more expensive form of delivery if the consumer chooses it above the lowest standard delivery.
Article 10 - Waiver of the right to withdraw
The trader can exclude the following products and services from the right of withdrawal, but only if the trader disclosed this clearly when making the offer, or at least before the contract was signed:
- Items or services whose prices are subject to financial market swings over which the entrepreneur has no control and which may occur during the withdrawal period;
- Contracts that were signed at a public auction. A public auction is a method of sale in which a trader offers products, digital content, and/or services to a consumer who is present in person or has the potential to be present in person at the auction, under the direction of an auctioneer, and the successful bidder is obligated to purchase the products, digital content, and/or services.
- Service contracts, but only if: a. the execution began with the customer's explicit prior permission; and b. the consumer has indicated that his right of withdrawal will be lost after the entrepreneur has fully executed the contract;
- Service contracts for the provision of accommodation, other than for residential purposes, if the contract provides for a specific date or period of performance, transportation of goods, car rental services, and catering;
- Leisure activity agreements, if the agreement provides for a specific date or period of performance;
- Consumer-specified products that are not prefabricated and are made on the basis of the consumer's own choice or decision, or that are plainly meant for a certain person;
- Products with a short shelf life or that deteriorate quickly;
- Sealed products that are not appropriate for return due to health or hygiene reasons and whose seal has been broken after delivery;
- Products that are irreversibly mixed with other products after delivery due to their nature;
- Alcoholic drinks, the price of which was agreed upon at the contract's conclusion, but delivery is only possible after 30 days, and the actual value of which is determined by market fluctuations over which the entrepreneur has no control;
- Sealed audio, video, and computer software that have had their seals breached after delivery;
- Newspapers, magazines, and journals, excluding subscriptions to these publications;
- The transmission of digital content other than on a tangible media, but only if: a. the execution began with the express prior consent of the consumer; and b. the consumer has indicated that his right of withdrawal is consequently lost.
Article 11 - The price
- Except for price adjustments related to changes in VAT rates, the prices of the products and/or services offered will not be changed throughout the offer's validity period.
- Besides the preceding paragraph, the trader may sell products or services at changeable prices that are due to financial market movements outside the trader's control. This link to fluctuations, as well as the fact that any prices stated are suggested pricing, will be made clear in the offer.
- Price increases are only permitted within three months of the contract's conclusion if they are the result of legislation or rules.
- Price increases after 3 months are only permitted if the entrepreneur has agreed to them and they are either: a. the result of statutory regulations or provisions; or b. the consumer has the right to terminate the contract on the day the price increase takes effect.
- The prices stated in the product or service offer include VAT.
Article 12 - Contract fulfillment and extra assurance
- The trader warrants that the items and/or services comply with the contract, the offer's specifications, reasonable reliability and/or serviceability standards, and legislative provisions and/or government regulations in effect at the time the contract was signed. If agreed upon, the entrepreneur also assures that the product can be used for purposes other than those intended.
- An additional guarantee supplied by the entrepreneur, his supplier, manufacturer, or importer in no way affects the legal rights and claims that the consumer has against the entrepreneur under the agreement if the entrepreneur fails to fulfill his part of the agreement.
- Any commitment of the entrepreneur, his supplier, importer, or producer in which he offers the consumer specific rights or claims that go beyond what he is legally bound to do in the event he fails to fulfill his side of the agreement is referred to as an additional guarantee.
Article 13 - Execution and delivery
- When accepting and carrying out product orders, as well as evaluating applications for the provision of services, the entrepreneur will exercise extreme caution.
- The delivery address is the one that the customer has provided to the business.
- Subject to Article 4 of these General Terms and Conditions, the Entrepreneur shall execute accepted orders as quickly as possible, but no later than 30 days, unless a different delivery term has been agreed upon. If a delivery is delayed, or if an order is unable to be filled or can only be partially supplied, the customer will be notified within 30 days of placing the order. In any circumstances, the consumer has the right to cancel the contract without penalty and receive any compensation.
- Following the dissolution described in the preceding paragraph, the entrepreneur will promptly reimburse the consumer's payment. 5. Unless otherwise expressly agreed, the risk of product damage and/or loss remains with the entrepreneur until delivery to the consumer or a previously selected and declared to the entrepreneur representative.
Article 14 - Transactions of a limited duration: length, termination, and renewal
- The consumer may enter into a contract for an indefinite duration that includes the regular delivery of items (including electricity) or services, and may terminate the contract at any time by denying the applicable termination conditions and giving a one-month notice.
- The consumer may enter into a contract for a specific period of time that includes the regular delivery of products (including electricity) or services, and may terminate the contract at any time after the fixed term has expired by denying the applicable termination rules and giving a one-month notice.
- The consumer has the right to terminate the agreements mentioned in the preceding paragraphs: - at any time and without being limited to termination at a specific time or for a specific period; - at least in the same manner as they were entered into by him; - at any time with the same notice period as the entrepreneur has stipulated for himself. Renewal:
- A contract for a specific period of time that includes the regular delivery of items (including electricity) or services may not be tacitly extended or renewed for a specific period of time.
- Notwithstanding the preceding paragraph, a contract for a fixed period that includes 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 agreement that has been extended near the end of the extension may be terminated with a one-month notice.
- A contract for a specific amount of time that includes the regular supply of items or services may only be extended tacitly for an unlimited duration provided the consumer has the right to cancel at any time with a one-month notice. If the contract is for the regular, but less than once a month, delivery of daily, news, and weekly newspapers and magazines, the notice period is up to three months.
- A contract for the regular delivery of daily, news, and weekly newspapers and magazines (trial or introductory subscription) with a limited term shall not be tacitly continued and shall expire automatically at the conclusion of the trial or introductory period. Duration:
- If a contract lasts longer than one year, the consumer may terminate the contract at any time with a one-month notice, provided rationality and fairness prevent termination before the end of the agreed term.
Article 15 - Payment
- The sums due by the consumer should be paid within 14 days of the commencement of the reflection period, or in the absence of a reflection period, within 14 days of the contract's conclusion, unless otherwise stipulated in the contract or additional conditions. This time begins the day after the consumer receives confirmation of the agreement in the case of a contract for the provision of a service.
- When selling products to customers, the consumer may never be compelled to pay more than 50% in advance in general terms and conditions. When prepayment is required, the consumer cannot assert any rights to the execution of the relevant order or service (s) until the prepayment is completed.
- The customer has a responsibility to immediately notify the operator of any discrepancies in the data submitted or specified payment.
- If the consumer fails to meet his or her payment obligations on time, he or she will owe the statutory interest on the amount due after being notified by the proprietor of the overdue payment and after the proprietor has given the consumer a period of 14 days to meet his or her payment obligations, and the proprietor has the right to charge extrajudicial collection costs. These collection expenses are limited to a maximum of 15% on outstanding sums up to € 2500, 10% on amounts above € 2500, and 5% on amounts over € 5000, with a minimum of € 40. For the interest of the customer, the proprietor may deviate from the stated amounts and percentages.
Article 16 - Procedure for Resolving Complaints
- The entrepreneur has a well-publicized complaint procedure and follows it when dealing with a complaint.
- Within a reasonable period after the customer discovers the defects, complaints about the agreement's implementation must be filed to the entrepreneur, completely and clearly documented.
- The entrepreneur must respond to complaints within 14 days of receipt, computed from the date of receipt. If a complaint is expected to take longer than 14 days to process, the entrepreneur will respond with a message of receipt and an indication of when the consumer can expect a more detailed response.
- A complaint regarding a product, a service, or the Entrepreneur's service can also be submitted through the Stichting Webshop Keurmerk's consumer page (http://keurmerk.info/Home/MisbruikOfKlacht). After that, the complaint will be addressed to both the Entrepreneur and Stichting Webshop Keurmerk.
- If the complaint cannot be resolved in joint consultation within a reasonable time or within three months of the complaint being filed, a dispute arises, which is subject to the dispute resolution procedure.
Article 17 - Disputes
- Only Dutch law applies to agreements between the entrepreneur and the consumer to whom these general conditions apply.
- Disputes between the Consumer and the Entrepreneur concerning the formation or performance of contracts relating to products and services to be delivered or that have been delivered by this Entrepreneur can be filed with the Geschillencommissie Webshop, Postbus 90600, 2509 LP in The Hague (www.sgc.nl) in accordance with the provisions set forth below.
- The Disputes Committee will only consider a dispute if the Consumer has first filed a complaint with the Entrepreneur within a reasonable amount of time.
- The dispute should be presented to the Disputes Committee in writing within twelve months of the occurrence of the issue.
- The entrepreneur is bound by the consumer's decision to submit a claim to the Disputes Committee. If the entrepreneur wishes to do so, the consumer must respond in writing within five weeks of the entrepreneur's written request, stating whether he wishes to do so or whether he wishes the issue to be resolved by a competent court. If the entrepreneur does not respond to the consumer's choice within five weeks, the entrepreneur has the right to file a complaint with the appropriate court.
- The Disputes Committee renders its decision in accordance with the Disputes Committee's norms (http://www.degeschillencommissie.nl/over-ons/decommissies/2701/webshop). De beslissingen van de The Disputes Committee's conclusions are made in the form of a binding opinion.
- If the trader has been granted a suspension of payments, gone bankrupt, or actually terminated business activities before the Disputes Committee dealt with the dispute during a session and rendered a final ruling, the Disputes Committee will not deal with the dispute or will terminate the proceedings.
- If another recognized arbitration board or one affiliated with the Stichting Geschillencommissies voor Consumentenzaken (SGC) or the Klachteninstituut Financiële Dienstverlening (Kifid) has jurisdiction in addition to the Geschillencommissie Webshop, the Geschillencommissie Stichting Webshop Keurmerk shall have priority over disputes involving primarily the method of distance selling or the provision of services. The other disputes committees recognized by the SGC or Kifid for all other conflicts.
Article 18 - Sectoral security
- Webshop Keurmerk promises that its members will follow the binding advise of the Disputes Committee Webshop Keurmerk unless the member wishes to submit the binding opinion for judicial review within two months of the shipment date. This assurance is reinstated if the court's binding decision is upheld and the judgment that demonstrates it has become final. This payment will be paid to the consumer by Webshop Keurmerk up to a maximum of €10,000,- per binding opinion. For amounts larger than €10,000,- per binding opinion, €10,000,- will be paid. Webshop Keurmerk is obligated to endeavor to ensure that the member follows the binding opinion for the excess amount.
- Consumers must submit a written claim to Webshop Keurmerk and assign their claim against the entrepreneur to Stichting 10 Webshop Keurmerk in order to be covered by this guarantee. If the claim against the entrepreneur exceeds €10,000, it will be provided to consumers to the extent that the claim exceeds €10,000, it will be passed to Stichting Webshop Keurmerk, which will seek payment and fulfillment of these rights in its own name and at its own expense.
Article 19 - Additional or alternative provisions
Additional provisions or provisions that differ from these General Terms and Conditions must be written down or recorded in such a way that the Consumer can access them on a long-term data carrier.
Article 20 - Modifications to the Stichting Webshop Keurmerk's General Terms and Conditions
- Without consulting the Consumentenbond, Stichting Webshop Keurmerk will not amend these General Terms and Conditions.
- Modifications to these Terms and Conditions will only take effect after they have been published in the appropriate manner, with the understanding that, if applicable amendments occur during the duration of an offer, the provision that is most favorable to the Consumer will take precedence. Willemsparkweg 193, 1071 HA Amsterdam, Webshop Keurmerk