Terms & Conditions
These General Terms and Conditions from the Dutch Thuiswinkel (home-shopping) Organisation (hereafter: Thuiswinkel.org) have been drawn up in consultation with the Consumers' Association within the framework of the Coordination Group on Self-Regulatory Consultation (CZ) from the Social Economic Council and take effect on 1 June 2014.
Index:
Article 1 - Definitions
Article 2 - Identity of the trader
Article 3 – Applicability
Article 4 - The offer
Article 5 - The contract
Article 6 - Right of withdrawal
Article 7 – Obligations of the consumer during the withdrawal period
Article 8 - Exercising the right of withdrawal by the consumer and costs involved
Article 9 - Obligations of the trader in case of withdrawal
Article 10 - Exclusion of right of withdrawal
Article 11 - The price
Article 12 - Compliance and additional warranty
Article 13 - Delivery and execution
Article 14 – Term agreement: duration, cancellation and extension
Article 15 - Payment
Article 16 - Complaints procedure
Article 17 - Disputes
Article 18 - Branch guarantee
Article 19 - Additional or different provisions
Article 20 - Amendment to the general terms and conditions of Thuiswinkel
Article 1 – Definitions
Definitions that apply in these terms and conditions:
1. Additional agreement: an agreement in which the consumer obtains products, digital content and/or services via a distance contract and these goods, digital content and/or services are provided by the trader or by a third party on the basis of an agreement between that third party and the trader;
2. Withdrawal period: the period within which the consumer can make use of his right of withdrawal;
3. Consumer: the natural person who does not act for purposes related to trade, business, craft or professional activity;
4. Day: calendar day;
5. Digital content: data produced and delivered in digital form;
6. Term Agreement: an agreement that extends to the regular delivery of goods, services and/or digital content during a certain period;
7. Durable medium: every means - including e-mail - that enables the consumer or trader to store information that is addressed to him in person in a way that facilitates future consultation or use during a period that is in keeping with the purpose for which the information is intended, and which allows unaltered reproduction of the stored information;
8. Right of withdrawal: the possibility for the consumer to waive the distance contract within the withdrawal period;
9. Trader: the natural or legal person who is a member of Thuiswinkel.org and who offers products, (access to) digital content and/or services to consumers at a distance;
10. Distance contract: an agreement concluded between the trader and the consumer within the framework of an organised system for distance selling of products, digital content and/or services, whereby sole or part use is made of one or more techniques for distance communication up to and including the moment the agreement is concluded;
11. Template form for withdrawal: the European template form for withdrawal included in Appendix I of these conditions; Appendix I does not have to be made available if the consumer has no right of withdrawal in regard to his order;
12. Technology for distance communication: means that can be used for concluding an agreement, without the consumer and trader having to be in the same room at the same time.
Article 2 - Identity of the trader
- Name of trader: Van Es Home B.V.
- Acting under the name / names: ESSENZA HOME
- Business address: Rumpsterweg 2, 3981AK, Bunnik, The Netherlands.
- Visiting address: Telephone number: +31 (0) 343 - 44 21 44
- Accessibility: From Monday to Friday from 9 a.m. to 5 p.m.
- E-mail address: info@essenzahome.com
- Chamber of Commerce number: 30058930
- VAT number: NL803328266B01
Article 3 - Applicability
1. These general terms and conditions apply to every offer made by the trader and to every distance contract that has been established between the trader and the consumer.
2. Before the distance contract is concluded, the text of these general terms and conditions will be made available to the consumer. If this is not reasonably possible, the trader will indicate before the distance contract is concluded how the general terms and conditions can be viewed at the traders premises and that they will be sent free of charge as quickly as possible at the consumers request.
3. If the distance contract is concluded electronically, then contrary to the previous paragraph and before the distance contract is concluded, the text of these general terms and conditions will be made available electronically to the consumer in such a way that the consumer can easily store them on a durable medium. If this is not reasonably possible, before the distance contract is concluded, it will be indicated where the general terms and conditions can be consulted electronically and that at the request of the consumer they can be sent free of charge by electronic means or otherwise.
4. In the event that specific product or service conditions apply in addition to these general terms and conditions, the second and third paragraphs shall also apply by analogy and the consumer may in the event of conflicting conditions always invoke the applicable condition that is most favourable to him.
Article 4 - The offer
1. If an offer is of limited duration or subject to conditions, this will be explicitly stated in the offer.
2. The offer contains a complete and accurate description of the offered products, digital content and/or services. The description is sufficiently detailed to allow a proper assessment of the offer by the consumer. If the trader uses images, these will be a true reflection of the offered products, services and/or digital content. The trader is not bound by obvious mistakes or errors in the offer.
3. Each offer contains information that makes it clear to the consumer what rights and obligations are attached to the acceptance of the offer.
Article 5 - The contract
1. Subject to the provisions of paragraph 4, the contract is concluded at the moment of acceptance by the consumer of the offer and the fulfilment of the corresponding conditions.
2. If the consumer has accepted the offer electronically, the trader will 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 trader, the consumer can dissolve the contract.
3. If the agreement is concluded electronically, the trader will take appropriate technical and organisational measures to secure the electronic transfer of data and he will ensure a secure web environment. If the consumer can pay electronically, the trader will observe appropriate security measures.
4. The trader may obtain information- within statutory frameworks - about the consumers ability to meet his payment obligations, as well as about the facts and factors that are important for a responsible conclusion of the distance contract. If the trader based on this investigation has good reasons not to enter into the contract, he is entitled to refuse an order or request, or to attach special conditions to the execution.
5. At the latest on delivery of the product, the service or digital content, the trader shall send the following information, in writing or in such a way that it can be stored by the consumer in an accessible manner on a durable medium:
a. the visiting address of the business location of the trader where the consumer can go with complaints;
b. the conditions under which and the manner in which the consumer can exercise the right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal;
c. the information about guarantees and existing service after purchase;
d. the price including all taxes of the product, service or digital content; insofar as applicable, the costs of delivery; and the method of payment, delivery or execution 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 template form for withdrawal.
6. In the case of an extended transaction, the provision in the previous paragraph only applies to the first delivery.
Article 6 - Right of withdrawal
For products:
1. The consumer can terminate an agreement with regard to the purchase of a product during a withdrawal period of 30 days without giving any reason. The trader may ask the consumer about the reason for the withdrawal, but can not oblige him to state his reason (s).
2. The withdrawal period referred to in paragraph 1 starts on the day after the consumer, or a third party designated by the consumer in advance, who is not the carrier, has received the product, or:
a. if the consumer ordered several products in the same order: the day on which the consumer, or a third party designated by him, received the last product. The trader may, provided he has informed the consumer in a clear manner prior to the ordering process, refuse an order of several 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, received the last shipment or the last part;
c. in contracts 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.
For services and digital content that is not delivered on a durable medium:
3. The consumer can terminate a service agreement and an agreement for delivery of digital content that has not been delivered on a durable medium for 30 days without giving any reason. The trader may ask the consumer about the reason for the withdrawal, but can not oblige him to state his reason (s).
4. The withdrawal period referred to in paragraph 3 starts on the day following the conclusion of the agreement.
Extended withdrawal period for products, services and digital content that has not been delivered on a durable medium when not informed about the right of withdrawal:
5. If the trader has not provided the consumer with the legally required information about the right of withdrawal or the template form for withdrawal, the withdrawal period will expire twelve months after the end of the original withdrawal period determined in accordance with the previous paragraphs of this article.
6. 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 withdrawal period, the withdrawal period will expire 30 days after the day on which the consumer has received this information.
Article 7 - Obligations of the consumer during the withdrawal period
1. During the withdrawal period, the consumer will handle the product and the packaging carefully. He will only unpack or use the product to the extent necessary to determine the nature, characteristics and operation of the product. The basic principle here is that the consumer may only handle and inspect the product as he would be allowed to do in a store.
2. The consumer is only liable for the value reduction of the product that is the result of a way of handling the product that goes further than allowed in paragraph 1.
3. The consumer is not liable for the value reduction of the product if the trader has not provided him with any legally required information about the right of withdrawal prior to or at the conclusion of the agreement.
Article 8 – Exercising the right of withdrawal by the consumer and costs involved
1. If the consumer exercises his right of withdrawal, he shall notify the trader within the withdrawal period by means of the template withdrawal form or in an unequivocal manner.
2. 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 trader. This is not necessary if the trader has offered to collect the product himself. In any case, the consumer has complied with the return period if he returns the product before the withdrawal period has expired.
3. The consumer shall return the product with all delivered accessories, if reasonably possible in the original state and packaging, and in accordance with the reasonable and clear instructions provided by the trader.
4. The risk and the burden of proof for the correct and timely exercise of the right of withdrawal lies with the consumer.
5. The consumer bears the direct costs of returning the product. If the trader has not reported that the consumer must bear these costs or if the trader indicates to bear the costs himself, the consumer does not have to bear the costs for return.
6. If the consumer exercises his right of withdrawal, after first explicitly having asked that the service provided or the delivery of gas, water or electricity not prepared for sale shall be implemented in a limited volume or a given quantity during the period of withdrawal, the consumer shall owe the trader a sum of money that is equivalent to that proportion of the contract that the trader has fulfilled at the moment of withdrawal, in comparison with fulfilling the contract entirely.
7. The consumer does not incur any costs for the execution 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:
the trader has not provided the consumer with the legally required information about the right of withdrawal, the cost reimbursement in the event of withdrawal or the template form for withdrawal, or;
the consumer has not expressly requested the commencement of the implement of the service or delivery of gas, water, electricity or district heating during the withdrawal period.
8. The consumer does not bear any costs for the full or partial delivery of digital content not supplied on a durable medium if:
prior to the delivery, he has not expressly agreed to commence the fulfilment of the contract before the end of the withdrawal period;
he does not acknowledge having lost his right of withdrawal when giving his consent; or
the trader has failed to confirm this statement from the consumer.
9. If the consumer exercises his right of withdrawal, all additional agreements will be legally dissolved.
Article 9 - Obligations of the trader in case of withdrawal
1. If the trader makes it possible for a consumer to declare his withdrawal via electronic means, then after receiving such a declaration he will send an immediate acknowledgment of receipt.
2. The trader will reimburse all payments from the consumer, including any delivery costs charged by the trader for the returned product, without delay and within 14 days following the day on which the consumer notifies him of the withdrawal. Unless the trader offers to collect the product himself, he may then wait to reimburse until he has received the product or until the consumer demonstrates that he has returned the product, whichever comes first.
3. The trader uses the same payment method that the consumer has used for reimbursement, unless the consumer agrees to another method. The reimbursement is free of charge for the consumer.
4. If the consumer has opted for a more expensive method of delivery than the cheapest standard delivery, the trader does not have to reimburse the additional costs for the more expensive method.
Article 10 - Exclusion of right of withdrawal
The trader can exclude the following products and services from the right of withdrawal, but only if the trader has clearly stated this in the offer, at least in time for the conclusion of the agreement:
1. Products or services whose price is subject to fluctuations in the financial market over which the trader has no influence and which may occur within the withdrawal period
2. Agreements concluded during a public auction. A public auction is understood to mean a sales method whereby products, digital content and/or services are offered by the trader to the consumer who is personally present or is given the opportunity to be personally present at the auction, 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 contracts, after full execution of the service, but only if:
a. the execution has begun with the express prior consent of the consumer; and
b. the consumer has declared that he will lose his right of withdrawal as soon as the trader has fully executed the agreement;
4. Package travel as referred to in Section 7: 500 of the Dutch Civil Code and passenger transport agreements;
5. Service agreements for the provision of accommodation, if a specific date or period of execution is provided in the agreement and other than for the purpose of accommodation, the transport of goods, car rental services and catering;
6. Agreements with regard to leisure activities, if a certain date or period of execution is provided for in the agreement;
7. Products manufactured according to the consumer's specifications, which are not prefabricated and which are manufactured on the basis of an individual choice or decision of the consumer, or which are clearly intended for a specific person;
8. Products that spoil quickly or have a limited shelf life;
9. Sealed products which for reasons of health protection or hygiene are not suitable to be returned and of which the seal has been broken after delivery;
10. Products that by their nature are irrevocably mixed with other products after delivery;
11. Alcoholic beverages of which the price has been agreed upon at the conclusion of the agreement, but the delivery of which can only take place after 30 days, and the actual value of which depends on fluctuations of the market on which the trader has no influence;
12. Sealed audio, video recordings and computer software, the seal of which has been broken after delivery;
13. Newspapers or magazines, with the exception of subscriptions;
14. The supply of digital content other than on a durable medium, but only if:
a. the execution has begun with the express prior consent of the consumer; and
b. the consumer has stated that he thereby loses his right of withdrawal.
Article 11 - The price
1. During the period mentioned in the offer, the prices of the offered products and/or services will not be increased, except for price changes due to changes in VAT rates.
2. Contrary to the previous paragraph, the trader can offer products or services at variable prices where the prices are subject to fluctuations in the financial market over which the trader has no influence. The offer must refer to this link with fluctuations and the fact that any prices mentioned are recommended prices.
3. Price increases within 3 months of the conclusion of the contract are only permitted if they are the result of statutory regulations or provisions.
4. Price increases more than 3 months after the conclusion of the contract are only permitted if the trader has stipulated this and:
a. they are the result of statutory regulations or stipulations; or
b. the consumer has the authority to terminate the agreement with effect from 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 agreement and additional warranty
1. The trader guarantees that the products and/or services fulfil the contract, the specifications stated in the offer, the reasonable requirements of reliability and/or serviceability and the statutory stipulations and/or government regulations that existed on the date that the contract was concluded. If agreed the trader also guarantees that the product is suited for other than normal use.
2. An extra guarantee arrangement offered by the trader, manufacturer or importer can never affect the statutory rights and claims that a consumer can enforce against the trader on the grounds of the contract if the trader failed to fulfil his part in the contract.
3. An extra guarantee is defined as the commitment of a trader, his supplier, importer or manufacturer that grants a consumer rights or claims, in excess of those provided by law, for the event that he fails to fulfil his part in the contract.
Article 13 - Delivery and execution
1. The trader will take the greatest possible care when receiving and implementing 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 trader.
3. With due observance of what is stated in article 4 of these general terms and conditions, the trader will execute accepted orders expeditiously but no later than 30 days, unless another delivery period has been agreed. If the delivery is delayed, or if an order can not be executed or only partially so, the consumer will receive notification of this no later than 30 days after he has placed the order. In that case, the consumer has the right to terminate the contract without penalty and the right to any compensation.
4. After dissolution in accordance with the previous paragraph, the trader will immediately repay the amount that the consumer has paid.
5. The risk of damage and/or loss of products rests with the trader up to the moment of delivery to the consumer or a representative predesignated by the consumer and announced to the trader, unless explicitly agreed otherwise.
Article 14 – Term agreement: duration, cancellation and extension
Cancellation:
1. The consumer can terminate an agreement that has been concluded for an indefinite period and which extends to the regular delivery of products (including electricity) or services, at any time with due observance of the agreed cancellation rules and a notice period of no more than one month.
2. The consumer can terminate an agreement that has been concluded for a definite period and which extends to the regular delivery of products (including electricity) or services, at any time at the end of the stipulated term, with due observance of the agreed cancellation rules and a notice period of up to one month.
3. In regards to the agreements referred to in the previous paragraphs, the consumer can:
a. cancel at any time and not be limited to termination at a specific time or during a certain period;
b. cancel in the same way in which the agreement was entered;
c. always cancel with the same notice period as the trader has stipulated for himself.
Extension:
4. A contract that has been entered into for a definite period and that extends to the regular delivery of products (including electricity) or services may not be automatically extended or renewed for a fixed term.
5. Notwithstanding the previous paragraph, a contract that has been entered into for a definite period and which extends to the regular delivery of daily and weekly newspapers and magazines may be automatically renewed for a fixed term of a maximum of three months, if the consumer may cancel towards the end of the extension with a notice period of no more than one month.
6. A contract that has been entered into for a definite period and that extends to the regular delivery of products or services may only be automatically renewed for an indefinite period, the consumer may cancel at any time with a notice period of no more than one month. The notice period is a maximum of three months in case the agreement extends to the regular, but less than once a month, delivery of daily and weekly newspapers and magazines.
7. A contract of limited duration to the regular delivery of daily and weekly newspapers and magazines (trial or introductory subscription) is not automatically continued and ends automatically after the trial or introductory period.
Duration:
8. If an agreement has a duration of more than one year, the consumer may terminate the agreement at any time with a notice period of no more than one month, unless the reasonableness and fairness dictate that the premature cancellation would be unacceptable.
Article 15 - Payment
1. Unless otherwise stipulated in the agreement or additional conditions, the amounts due by the consumer must be paid within 14 days after the commencement date, or in the absence of a withdrawal period within 14 days after the close of the agreement. In case of an agreement to provide a service, this period starts on the day after the consumer has received the confirmation of the agreement.
2. When selling products to consumers, the general terms and conditions may never stipulate an advance payment in excess of 50%. If payment in advance is stipulated, the consumer can not assert any rights regarding the execution of the order or service (s), before the stipulated advance payment has taken place.
3. The consumer has the duty to report inaccuracies in provided or stated payment details to the trader without delay.
4. If a consumer fails to fulfil his payment obligation(s) in good time, after the trader has informed the consumer about the late payment, the consumer is allowed 14 days in which to fulfil the obligation to pay; if payment is not made within this 14-day period, statutory interest will be payable over the sum owed and the trader has the right to charge reasonable extrajudicial costs of collection he has incurred. These costs of collection amount to, at the most: 15% of unpaid sums up to €2,500; 10% over the next €2,500; and 5% over the next €5,000, with a minimum of €40. The trader may deviate from these amounts and percentages in a way that is beneficial to the consumer.
Article 16 - Complaints procedure
1. The trader has a well-publicised complaints procedure and handles the complaint in accordance with this complaints procedure.
2. Complaints about the execution of the agreement must be submitted fully with a clear description to the trader within a reasonable time after the consumer has discovered the defects.
3. Complaints submitted to the trader will be answered within a period of 14 days from the date of receipt. If a complaint is anticipated to require a 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.
4. A complaint about a product, service or the service of the trader can also be submitted via a complaints form on the consumer page of the website of Thuiswinkel.org www.thuiswinkel.org. The complaint will then be sent to the relevant trader as well as Thuiswinkel.org.
5. The consumer must give the trader at least 4 weeks to resolve the complaint in joint consultation. After this period, a dispute arises that is susceptible to the dispute settlement scheme.
Article 17 - Disputes
1. Contracts entered into between a trader and a consumer and which are subject to these general terms and conditions are subject only to Dutch law.
2. Disputes between the consumer and the trader about the conclusion or performance of agreements with regard to products and services to be supplied or delivered by this trader, can be submitted by both the consumer and the trader to The Disputes Committee, Thuiswinkel, PO Box 90600, 2509 LP in The Hague (www.sgc.nl). Subject to the provisions below.
3. 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 time.
4. 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 trader.
5. If the consumer wants to submit a dispute to the Disputes Committee, the trader is bound by this choice. Preferably the consumer notifies the trader first.
6. If the trader wants to submit a dispute to the Disputes Committee, the consumer will have to indicate in writing within five weeks after a request is made in writing by the trader, whether he wishes to do so or wants to have the dispute dealt with by the competent law-court. If the trader does not hear the choice of the consumer within the period of five weeks, then the trader is entitled to submit the dispute to the competent law-court.
7. The Disputes Committee will make a decision under the conditions as set out in the rules of the Disputes Committee (www.degeschillencommissie.nl/over-ons/de-commissies/2404/thuiswinkel). The decisions of the Disputes Committee take form of binding advice.
8. The Disputes Committee will not deal with a dispute or will discontinue the proceedings if the trader is granted a suspension of payments, has been declared bankrupt or has ended his business activities, before a dispute has been dealt with by the Committee at the hearing and a final statement has been made.
9. If, alongside the Thuiswinkel Disputes Committee, there is another competent disputes committee that is recognised or one that is affiliated with the Disputes Committee Foundation for Consumer Affairs (SGC) or the Complaints Institute Financial Services (Kifid), the Thuiswinkel Disputes Committee shall preferably have jurisdiction for disputes that relate principally to the sales method or to providing services long-distance. For all other disputes, this this will be the other disputes committee that is recognised by the SGC or affiliated with the Kifid.
Article 18 - Branch guarantee
1. Thuiswinkel.org guarantees the fulfilment of obligations of its members in relation to binding advice imposed on them by the Thuiswinkel Disputes Committee, unless the member decides to put the binding advice before a law-court for verification within two months after the date of that advice. In case of court verification the suspension of the guarantee will end and the guarantee will come into effect again upon the court ruling becoming final and conclusive, whereby the court has declared that the binding advice has binding effect. Up to a maximum sum of €10,000 per binding advice Thuiswinkel.org will pay this sum to the consumer. In case of sums higher than €10,000 per binding advice, the sum of €10,000 will be paid. In as far as the sum is higher than €10,000, Thuiswinkel.org has the obligation to take reasonable adequate efforts to pursue the member to fulfil the binding advice.
2. Application of this guarantee requires the consumer to submit a written appeal to Thuiswinkel.org and to transfer his claim on the trader to Thuiswinkel.org. In as far as the claim on the trader exceeds the sum of €10,000, the consumer will be offered the possibility to transfer his claim on the trader above the sum of €10,000 to Thuiswinkel.org, where after this organisation will pursue payment of the claim in court on her own title and costs.
Article 19 - Additional or different provisions
Additional stipulations or stipulations that differ from these general terms and conditions, may not be detrimental to the consumer and should be recorded in writing, or in such a way that consumers can store them in a readily accessible manner on a durable medium.
Article 20 - Amendment to the General Terms and Conditions of Thuiswinkel
1. Thuiswinkel.org will only amend these terms and conditions after consultation with the Consumers' Association.
2. Amendments to these terms and conditions shall only take effect after they have been published in the appropriate manner, on the understanding that in the case of applicable changes during the term of an offer the most favourable provision for the consumer will prevail.
Thuiswinkel.org
www.thuiswinkel.org
Horaplantsoen 20, 6717 LT Ede
Postbus 7001, 6710 CB Ede
Appendix I: Template form for withdrawal
Template form for withdrawal
(only fill in this form and return it when you want to cancel the contract)
a. To: [name of trader]
[geographic address trader]
[facsimile number trader, if available]
[e-mail address or electronic address of trader]
b. I / We * hereby inform you, that I / we * revoke our agreement concerning
the sale of the following products: [product designation] *
the delivery of the following digital content: [indication of digital content] *
the performance of the following service: [service designation] *,
c. Ordered on * / received on * [date order with services or receipt with products]
d. [Consumer name (s)]
e. [Consumer address (s)]
f. [Signature consumer (s)] (only when this form is submitted on paper)
* Delete what is not applicable or fill in what is applicable.