These General Terms and Conditions of Stichting Webshop Keurmerk have been drawn up in consultation with the Consumers’ Association within the framework of the Coordination Group Self-Regulation Consultation (CZ) of the Social and Economic Council and will enter into force on June 1, 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 and in so far as these services are supervised by the Netherlands Authority for the Financial Markets.
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 the event of 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 procedure
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 these terms and conditions, the following definitions shall apply:
1. Ancillary contract: a contract in which the consumer products, digital content
and/or services acquired in connection with a distance contract and these items, digital content and/or services are provided by the entrepreneur or by a third party based on an arrangement between that third party and the entrepreneur;
2. Reflection period: the period within which the consumer can exercise his right of withdrawal;
3. Consumer: the natural person who is not acting for purposes related to his
trade, business, craft or profession;
4. Day: calendar day;
5. Digital content: data produced and delivered in digital form;
6. Contract for an indefinite period of time: an agreement for the regular delivery of goods, services
and/or digital content for a specified period of time;
7. Durable medium: any device – including e-mail – that the
enables consumers or traders to store information addressed personally to them in a way that allows future consultation or use for a period of time appropriate to the purpose for which the information is intended, and which allows unaltered reproduction of the stored information;
8. Right of withdrawal: the consumer’s option to waive the distance contract within the withdrawal period;
9. Entrepreneur: the natural or legal person who is a member of Stichting Webshop Keurmerk and offers products, (access to) digital content and/or services to consumers from a distance;
10. Distance contract: a contract concluded between the entrepreneur and the consumer in the context of an organized system for distance selling of products, digital content and / or services, where up to and including the conclusion of the contract exclusive or joint use is made of one or more techniques for distance communication;
11. Model withdrawal form: the European model withdrawal form included in Annex I of these terms and conditions;
12. Technology for distance communication: means that can be used to conclude an agreement, without the consumer and entrepreneur having to be together in the same room at the same time;
Article 2 – Identity of the entrepreneur
If the entrepreneur’s activity is subject to a relevant licensing regime: the data on the supervisory authority;
If the entrepreneur practices a regulated profession:
– the professional association or organization with which he is affiliated;
– the professional title, the place in the EU or the European Economic Area where it was granted;
– a reference to the professional rules applicable in the Netherlands and indications where
and how these professional rules can be accessed.
Article 3 – Applicability.
1. These general terms and conditions apply to every offer made by the entrepreneur and to every distance contract concluded between entrepreneur and consumer.
2. Before the distance contract is concluded, the text of these general terms and conditions shall be made available to the consumer. If this is not reasonably possible, prior to the conclusion of the distance contract, the entrepreneur will indicate in what way the general terms and conditions can be inspected at the entrepreneur’s premises and that, at the consumer’s request, they will be sent free of charge as soon as possible.
3. If the distance contract is concluded electronically, notwithstanding the previous paragraph and before the distance contract is concluded, the text of these general terms and conditions may be made available to the consumer electronically in such a way that it can be easily stored by the consumer on a durable data carrier. If this is not reasonably possible, before the distance contract is concluded, it will be indicated where the general terms and conditions can be inspected electronically and that they will be sent electronically or otherwise free of charge at the consumer’s request.
4. In the event that specific product or service conditions apply in addition to these general conditions, the second and third paragraphs shall apply mutatis mutandis and in the event of conflicting conditions, the consumer may always rely on the applicable provision that is most favorable to him.
Article 4 – The offer
1. If an offer has a limited period of validity or is made subject to conditions, this shall be expressly stated in the offer.
2. The offer contains a complete and accurate description of the products, digital content and/or services offered. The description is sufficiently detailed to allow a proper assessment of the offer by the consumer. If the entrepreneur uses images, they are a true representation of the products, services and/or digital content offered. Obvious mistakes or obvious errors in the offer do not bind the entrepreneur.
3. Each offer contains such information that it is clear to the consumer what the rights and obligations are, which are attached to the acceptance of the offer.
Article 5 – The Agreement
1. The agreement is concluded, subject to the provisions of paragraph 4, at the time of acceptance by the consumer of the offer and the fulfillment of the conditions set forth therein.
2. If the consumer has accepted the offer electronically, the entrepreneur shall immediately confirm electronically the receipt of the acceptance of the offer. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer can dissolve the agreement.
3. If the agreement is established electronically, the entrepreneur shall take appropriate technical and organizational measures to protect the electronic transfer of data and shall ensure a secure web environment. If the consumer can pay electronically, the entrepreneur will observe appropriate security measures for this purpose.
4. The entrepreneur may – within legal frameworks – inform himself 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 application or to attach special conditions to the implementation, while giving reasons.
5. The entrepreneur will, at the latest upon delivery of the product, service or digital content, send the consumer the following information, in writing or in such a way that it can be stored by the consumer in an accessible way on a durable data carrier:
a. the visiting address of the trader’s office to which the consumer can address complaints;
b. the conditions under which and the manner in which the consumer can use the right of withdrawal, or a clear indication of the exclusion of the right of withdrawal;
c. the information about warranties and existing service after purchase;
d. the price including all taxes of the product, service or digital content; where applicable, the cost of delivery; and the method of payment, delivery or performance of the distance contract;
e. the requirements for terminating 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.
6. In the case of a duration transaction, the provision of the previous paragraph applies only to the first delivery.
Article 6 – Right of withdrawal
For products:
1. The consumer can dissolve an agreement related to the purchase of a product during a reflection period of at least 14 days without giving reasons. The operator may ask the consumer about the reason for withdrawal, but may not require the consumer to provide his reason(s).
2. The cooling-off period referred to in paragraph 1 starts 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 ordered multiple products in the same order: the day on which
the consumer, or a third party designated by the consumer, has received the last product. The entrepreneur may, provided he has clearly informed the consumer of this prior to the ordering process, refuse an order of several products with different delivery times.
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, received the last shipment or part;
c. for contracts for regular delivery of products during a specified period: the day on which the consumer, or a third party designated by him, received the first product.
For services and digital content not delivered on a tangible medium:
3. The consumer may rescind a service contract and a contract for the supply of digital content not supplied on a tangible medium for at least 14 days without giving reasons. The operator may ask the consumer about the reason for withdrawal, but may not require the consumer to provide his reason(s).
4. The cooling-off period referred to in paragraph 3 starts on the day following the conclusion of the agreement.
Extended cooling-off period for products, services and digital content not delivered on a tangible medium in case of failure to inform about right of withdrawal:
5. If the entrepreneur provides the consumer with the legally required information about the right of withdrawal
or has not provided the model withdrawal form, the reflection period expires twelve months after the end of the original reflection period determined in accordance with the previous paragraphs of this article.
6. If the entrepreneur has provided the information referred to in the previous paragraph to the consumer within 12 months after the effective date of the original cooling-off period, the cooling-off period expires 14 days after the day on which the consumer received that information.
Article 7 – Obligations of the consumer during the reflection period
1. During the reflection period, the consumer will handle the product and its packaging with care. He shall unpack or use the product only to the extent necessary to ascertain the nature, characteristics and operation of the product. The premise here is that the consumer may only handle and inspect the product as he would be permitted to do in a store.
2. The consumer is only liable for depreciation of the product resulting from handling the product beyond what is permitted in paragraph 1.
3. The consumer is not liable for depreciation of the product if the entrepreneur has not provided him with all legally required information on 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
1. If the consumer exercises his right of withdrawal, he shall notify the entrepreneur within the withdrawal period by means of the model withdrawal form or in another unambiguous manner.
2. As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the consumer returns the product, or hands it to (an authorized representative of) the entrepreneur. This is not required if the entrepreneur has offered to pick up the product himself. The consumer has complied with the return period in any case if he returns the product before the cooling-off period has expired.
3. The consumer returns the product with all delivered accessories, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.
4. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lies with the consumer.
5. The consumer bears the direct cost of returning the product. If the trader has not notified the consumer that the consumer must bear these costs or if the trader indicates that the consumer will bear the costs himself, the consumer does not have to bear the cost of return shipment.
6. If the consumer revokes 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 certain quantity begin during the withdrawal period, the consumer shall owe the entrepreneur an amount proportional to that part of the commitment fulfilled by the entrepreneur at the time of revocation, compared to the full fulfillment of the commitment.
7. The consumer shall not bear any costs for the performance of services or the supply of water, gas or electricity, not made ready for sale in a limited volume or quantity, or to supply district heating, if:
a. the entrepreneur provides the consumer with the legally required information about the right of withdrawal, the
cost reimbursement for withdrawal or failed to provide the model withdrawal form, or;
b. the consumer does not expressly request the commencement of the performance of the service or supply of
requested gas, water, electricity or district heating during the reflection period.
8. The consumer bears no cost for the full or partial delivery of non
material carrier delivered digital content, if:
a. he has not expressly consented, prior to its delivery, to the commencement of
fulfillment of the contract before the end of the cooling-off period;
b. he has not acknowledged losing his right of withdrawal when giving his consent;
or
c. the entrepreneur has failed to confirm this statement by the consumer.
9. As
agreements by operation of law.
consumer exercises his right of withdrawal, all additional
Article 9 – Obligations of the entrepreneur in the event of withdrawal
1. If the trader enables the consumer’s notification of withdrawal by electronic means, he shall send a confirmation of receipt without delay after receiving this notification.
2. 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 pick up the product himself, he may wait to refund until he has received the product or until the consumer proves that he has returned the product, whichever is earlier.
3. For reimbursement, the entrepreneur uses the same means of payment that the consumer has used, unless the consumer agrees to another method. The refund is free of charge to the consumer.
4. If the consumer has chosen a more expensive method of delivery than the least expensive standard delivery, the entrepreneur does not have to refund the additional costs for the more expensive method.
Article 10 – Exclusion of the right of withdrawal.
The Entrepreneur may exclude the following products and services from the right of withdrawal, but only if the Entrepreneur stated this clearly in the offer, at least in time for the conclusion of the contract:
1. Products or services whose price is subject to fluctuations in the financial market
over which the entrepreneur has no control and which may arise within the withdrawal period
occur
2. Contracts concluded at a public auction. A public auction is defined as
means a method of sale in which products, digital content and/or services are offered by the entrepreneur to consumers who attend or are given the opportunity to attend the auction in person, under the direction of an auctioneer, and in which the successful bidder is obliged to purchase the products, digital content and/or services;
3. Service agreements, after full performance of the service, but only if:
a. the performance has begun with the express prior consent of the consumer; and
b. the consumer has declared that he loses his right of withdrawal as soon as the entrepreneur has received the
executed the agreement in full;
4. Service agreements for provision of accommodation, if in the agreement
a specified date or period of performance is provided and other than for residential purposes,
freight transportation, car rental services and catering;
5. Contracts related to leisure activities, if the contract contains a specific
date or period of performance thereof is provided;
6. Products manufactured according to consumer specifications, which are not prefabricated and
which are manufactured on the basis of an individual choice or decision by the consumer, or which are
clearly intended for a specific person;
7. Products that spoil quickly or have a limited shelf life;
8. Sealed products that are not suitable to be returned for reasons of health protection or hygiene and whose seal has been broken after delivery;
9. Products that after delivery are by their nature irrevocably mixed with other products;
10. Alcoholic beverages whose price was agreed at the conclusion of the contract, but whose delivery can only take place after 30 days, and whose actual value depends on fluctuations in the market over which the entrepreneur has no influence
has;
11. Sealed audio, video recordings and computer software, the seal of which after
delivery is broken;
12. Newspapers, periodicals or magazines, excluding subscriptions thereto;
13. The provision of digital content other than on a tangible medium, but only if:
a. the performance has begun with the express prior consent of the consumer; and
b. the consumer has declared that he thereby loses his right of withdrawal.
Article 11 – The price
1. During the validity period 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.
2. Notwithstanding the previous paragraph, the entrepreneur may offer products or services whose prices are subject to fluctuations in the financial market and over which the entrepreneur has no control, with variable prices. This bond to fluctuations and the fact that any prices quoted are target prices are stated with the offer.
3. Price increases within 3 months of the conclusion of the agreement are only allowed if they result from legal regulations or provisions.
4. Price increases from 3 months after the conclusion of the contract are only allowed if the entrepreneur has stipulated it 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.
5. The prices mentioned in the offer of products or services include VAT.
Article 12 – Compliance with the agreement and additional warranty
1. The trader guarantees that the products and/or services comply with the agreement, the specifications stated in the offer, the reasonable requirements of soundness and/or usability and the legal provisions and/or government regulations existing on the date of the conclusion of the agreement. If agreed, the entrepreneur also guarantees that the product is suitable for other than normal use.
2. 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.
3. Additional guarantee means any commitment by the entrepreneur, his supplier, importer or producer in which he grants the consumer certain rights or claims that go beyond what he is legally obliged to do in case he has failed to fulfill his part of the agreement.
Article 13 – Delivery and execution
1. The entrepreneur will take the greatest possible care when receiving and executing orders for products and when assessing applications for the provision of services.
2. The place of delivery is the address that the consumer has made known to the entrepreneur.
3. 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 cannot be fulfilled or can only be partially fulfilled, the consumer will be notified no later than 30 days after the order was placed. In this case, the consumer has the right to dissolve the contract without cost and the right to possible damages.
. After dissolution in accordance with the previous paragraph, the entrepreneur will immediately refund the amount paid by the consumer.
5. The risk of damage and/or loss of products rests with the entrepreneur until the moment of delivery to the consumer or a representative designated in advance and made known to the entrepreneur, unless otherwise expressly agreed.
Article 14 – Duration transactions: duration, termination and renewal
Termination:
1. The consumer may at any time terminate a contract entered into for an indefinite period and which extends to the regular delivery of products (including electricity) or services, subject to agreed termination rules and a notice period not exceeding one month.
2. The consumer may terminate a fixed-term contract that has been concluded for the regular delivery of products (including electricity) or services at any time towards the end of the fixed term, subject to agreed termination rules and a notice period not exceeding one month.
3. The consumer may the agreements mentioned in the previous paragraphs:
– cancel at any time and not be limited to cancellation at a particular time or in a
given period;
– terminate at least in the same manner as they were entered into by him;
– always cancel with the same notice period as the entrepreneur has stipulated for himself.
Extension:
4. An agreement entered into for a definite period of time, which extends to the regular delivery of products (including electricity) or services, may not be tacitly extended or renewed for a definite period of time.
5. Notwithstanding the preceding paragraph, a fixed-term contract that has been concluded for the regular delivery of daily or weekly newspapers and magazines may be tacitly renewed for a fixed term not exceeding three months, if the consumer may terminate this renewed contract by the end of the renewal with a notice period not exceeding one month.
6. A fixed-term contract that has been concluded for the regular delivery of products or services may only be tacitly renewed for an indefinite period of time if the consumer may terminate it at any time with a notice period not exceeding one month. The notice period shall be at most three months in case the contract extends to the delivery of daily, news and weekly newspapers and magazines regularly, but less than once a month.
7. A limited duration agreement to regularly deliver daily, news and weekly newspapers and magazines for introductory purposes (trial or introductory subscription) is not tacitly continued and ends automatically at the end of the trial or introductory period.
Duration:
8. If a contract has a duration of more than one year, after one year the consumer may terminate the contract at any time with a notice period not exceeding one month, unless reasonableness and fairness oppose termination before the end of the agreed duration.
Article 15 – Payment
1. Unless otherwise provided in the agreement or additional conditions, the amounts owed by the consumer must be paid within 14 days after the start of the reflection period, or in the absence of a reflection period within 14 days after the conclusion of the agreement. In the case of an agreement to provide a service, this period begins on the day after the consumer receives the confirmation of the agreement.
2. When selling products to consumers, general terms and conditions may never require consumers to pay more than 50% in advance. Where advance payment has been stipulated, the consumer may not assert any rights regarding the execution of the relevant order or service(s) before the stipulated advance payment has been made.
3. The consumer has the duty to immediately report inaccuracies in payment information provided or stated to the entrepreneur.
4. If the consumer does not timely fulfill his payment obligation(s), he is, after he has been informed by the entrepreneur of the late payment and the entrepreneur has given the consumer a term
of 14 days to still fulfill his payment obligations, after the failure to pay within this 14-day period, over the amount still owed the statutory interest and the entrepreneur has the right to charge the extrajudicial collection costs incurred by him. These collection costs amount to a maximum of: 15% on outstanding amounts up to € 2,500; 10% on the following € 2,500 and 5% on the following € 5,000 with a minimum of € 40. The entrepreneur may deviate from the mentioned amounts and percentages for the benefit of the consumer.
Article 16 – Complaints procedure
1. The entrepreneur has a sufficiently publicized complaint procedure and handles the complaint in accordance with this complaint procedure.
2. Complaints about the implementation of the agreement must be submitted to the entrepreneur within a reasonable time after the consumer has found the defects, fully and clearly described.
3. Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeably longer processing time, the operator will respond within the 14-day period with a notice of receipt and an indication of when the consumer can expect a more detailed response.
4. A complaint about a product, service or the service of the Entrepreneur can also be submitted via a complaint form on the consumer page of the website of Stichting Webshop Keurmerk (http://keurmerk.info/Home/MisbruikOfKlacht) The complaint will then be sent both to the Entrepreneur in question and to Stichting Webshop Keurmerk.
5. If the complaint cannot be resolved by mutual agreement within a reasonable period of time or within 3 months of the filing of the complaint, a dispute shall arise that is amenable to the dispute resolution procedure.
Article 17 – Disputes.
1. Contracts between the entrepreneur and the consumer to which these general terms and conditions relate are exclusively governed by Dutch law.
2. Disputes between the Consumer and the Entrepreneur about the formation or performance of contracts related to products and services to be supplied or delivered by this Entrepreneur can be submitted, with due observance of the provisions below, by both the Consumer and the Entrepreneur to the Geschillencommissie Webshop, Postbus 90600, 2509 LP in The Hague (www.sgc.nl).
3. A dispute will only be considered by the Disputes Committee if the consumer has first submitted his complaint to the entrepreneur within a reasonable time.
4. No later than three months after the dispute has arisen, the dispute must be submitted in writing to the Disputes Committee.
5. If the consumer wishes to submit a dispute to the Disputes Committee, the entrepreneur is bound by this choice. If the entrepreneur wishes to do so, the consumer will have to express in writing, within five weeks after a written request made by the entrepreneur to that effect, whether he so desires or wants the dispute to be dealt with by the competent court. If the entrepreneur does not hear the consumer’s choice within the five-week period, the entrepreneur is entitled to submit the dispute to the competent court.
6. The Disputes Committee shall rule under the conditions set out in the regulations of the Disputes Committee (http://www.degeschillencommissie.nl/over-ons/de- commissions/2701/webshop). The decisions of the Disputes Committee are made by way of a binding opinion.
7. The Disputes Committee will not deal with a dispute or will cease to deal with it if the entrepreneur has been granted a suspension of payments, has become bankrupt or has actually terminated his business activities, before a dispute has been dealt with by the committee at the session and a final ruling has been issued.
8. If, in addition to the Geschillencommissie Webshop, another recognized dispute committee or dispute committee affiliated to the Stichting Geschillencommissies voor Consumentenzaken (SGC) or the Klachteninstituut Financiële Dienstverlening (Kifid) is competent, the Geschillencommissie Stichting Webshop Keurmerk will have preference over the Geschillencommissie Webshop Keurmerk for disputes mainly concerning the method of distance selling or provision of services. For all other disputes the other recognized SGC or Kifid affiliated disputes committee.
Article 18 – Industry guarantee
1. Stichting Webshop Keurmerk guarantees the fulfilment of the binding advice of the Disputes Committee Stichting Webshop Keurmerk by its members unless the member decides to submit the binding opinion to the court for review within two months after it has been sent. This guarantee revives, if the binding opinion has been upheld after review by the court and the judgment evidencing it has become final. Up to a maximum amount of €10,000,- per binding opinion, this amount will be paid to the consumer by Stichting Webshop Keurmerk. For amounts greater than €10,000 per binding opinion, €10,000 will be paid. For the excess, Stichting Webshop Keurmerk has a best-efforts obligation to ensure that the member complies with the binding opinion.
2. The application of this guarantee requires that the Consumer submits a written appeal to Stichting Webshop Keurmerk and that he transfers his claim on the Entrepreneur to Stichting Webshop Keurmerk. If the claim against the Entrepreneur exceeds €10,000,-, the Consumer will be offered to transfer his claim to the extent that it exceeds the amount of €10,000,- to Stichting Webshop Keurmerk, after which this organization will, in its own name and costs, seek payment thereof in court to satisfy the Consumer.
Article 19 – Additional or different provisions
Additional provisions or provisions deviating from these general 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 General Terms and Conditions of Stichting Webshop Keurmerk
1. Stichting Webshop Keurmerk will not change these General Terms and Conditions other than in consultation with the Consumers’ Association.
2. Amendments to these terms and conditions shall only be effective after they have been published in an appropriate manner, provided that in the event of applicable amendments during the term of an offer, the provision most favorable to the consumer shall prevail.
Address Stichting Webshop Keurmerk: Willemsparkweg 193, 1071 HA Amsterdam