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General Terms And Conditions Of Thuiswinkel
These General Terms and Conditions of the Dutch Thuiswinkel Organizationalgemene voorwaarden (hereafter: Thuiswinkel.org) have been established 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 come into effect on June 1, 2014.

Definitions
Additional agreement: an agreement whereby the consumer acquires products, digital content and/or services in connection with a distance contract and these goods, digital content and/or services are supplied by the entrepreneur or by a third party based on an arrangement between that third party and the entrepreneur;

Reflection period: the period within which the consumer can make use of his right of withdrawal;

Consumer: the natural person who is not acting for purposes related to his trade, business, craft, or professional activity;

Day: calendar day;

Digital content: data produced and supplied in digital form;

Duration contract: a contract aimed at the regular delivery of goods, services and/or digital content during a specified period;

Durable medium: any tool – including email – that enables the consumer or entrepreneur to store information addressed to him personally in a way that future consultation or use during a period appropriate to the purpose for which the information is intended, and that allows the unchanged reproduction of the stored information;

Right of withdrawal: the possibility for the consumer to waive the distance contract within the reflection period;

Entrepreneur: the natural or legal person who is a member of Thuiswinkel.org and offers products, (access to) digital content and/or services to consumers at a distance;

Distance contract: an agreement concluded between the entrepreneur and the consumer within the framework of an organized system for the distance sale of products, digital content and/or services, where until and including the conclusion of the agreement, exclusive or joint use is made of one or more techniques for distance communication;

Model withdrawal form: the European model withdrawal form included in Annex I of these conditions; Annex I does not need to be provided if the consumer has no right of withdrawal in respect of his order;

Technique for distance communication: means that can be used for concluding an agreement, without the consumer and entrepreneur having to come together in the same space at the same time.
Identity of The Entrepreneur
Entrepreneur’s name: Smith & Sinclair BV
Trading under the name(s): Smith & Sinclair
Establishment address: Rijnkade 14 1382 GS Weesp Telephone number: +31294414093
Availability: From Monday to Friday from 08:30 to 17:00
Email address: info@smithandsinclair.com
Chamber of Commerce number: 80609589
VAT identification number: NL861734622B01
Applicabaility
1. These general terms and conditions apply to every offer from the entrepreneur and to every distance contract that has been concluded between the entrepreneur 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, before the distance contract is concluded, the entrepreneur will indicate how the general terms and conditions can be inspected at the entrepreneur’s premises and that they will be sent to the consumer free of charge as quickly as possible upon request.

3. If the distance contract is concluded electronically, in deviation from the previous paragraph, and before the contract is concluded, the text of these general terms and conditions can be made available to the consumer electronically in such a way that it can be stored by the consumer in a simple way 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 inspected electronically and that they will be sent to the consumer free of charge.
The Offer
1. If an offer has a limited duration or is subject to conditions, this will be explicitly 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 enable a proper assessment of the offer by the consumer. If the entrepreneur uses images, they must be a truthful representation of the offered products, services, and/or digital content. Apparent mistakes or errors in the offer do not bind the entrepreneur.

3. Every offer contains such information that it is clear to the consumer what rights and obligations are attached to accepting the offer.
The Agreement
1. The agreement is subject to the provisions of paragraph 4, concluded at the moment of acceptance by the consumer of the offer and the fulfillment of the conditions set.

2. If the consumer has accepted the offer electronically, the entrepreneur will immediately confirm receipt of the acceptance of the offer electronically. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer may dissolve the agreement.

3. If the agreement is established electronically, the entrepreneur will take appropriate technical and organizational measures to secure the electronic transfer of data and ensure a safe web environment. If the consumer can pay electronically, the entrepreneur will observe appropriate security measures.

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 the entrepreneur based on this investigation has good grounds not to enter into the agreement, he is entitled to refuse an order or request motivated or to attach special conditions to the execution.

5. The entrepreneur will send to the consumer 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, at the latest at the delivery of the product, service, or digital content:
  • the address of the entrepreneur’s establishment where the consumer can file complaints;
  • the conditions under which and the way in which the consumer can exercise the right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal;
  • information about warranties and existing after-sales service;
  • the price, including all taxes of the product, service, or digital content; where applicable, the costs of delivery; and the method of payment, delivery, or performance of the distance contract;
  • the requirements for terminating the agreement if the agreement has a duration of more than one year or is indefinite;
  • if the consumer has a right of withdrawal, the model withdrawal form.
Right of Withdrawal of Products
1. The consumer may dissolve a contract regarding the purchase of a product during a reflection period of 14 days without giving any reasons. The entrepreneur may ask the consumer for the reason for withdrawal, but cannot oblige him to state his reason(s).

2. The reflection period referred to in paragraph 1 begins on the day after the consumer, or a third party designated by the consumer, who is not the carrier, has received the product, or:

3. if the consumer has ordered several products in the same order: the day on which the consumer, or a third party designated by him, has received the last product. The entrepreneur may refuse an order of several products with different delivery times, provided he has clearly informed the consumer about this prior to the ordering process.

4. If the delivery of a product consists of several shipments or parts: the day on which the consumer, or a third party designated by him, has received the last shipment or the last part;

5. for agreements for regular delivery of products during a certain period: the day on which the consumer, or a third party designated by him, has received the first product.

6. For services and digital content that are not supplied on a tangible medium: The consumer can dissolve a service contract and an agreement for the delivery of digital content that is not delivered on a tangible medium for 14 days without giving any reasons. The entrepreneur may ask the consumer for the reason for withdrawal, but cannot oblige him to state his reason(s).

7. The reflection period mentioned in paragraph 3 begins on the day following the conclusion of the agreement.

8. Extended reflection period for products, services, and digital content that are not delivered on a tangible medium in case of non-information about the right of withdrawal:
  • If the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model withdrawal form, the reflection period ends twelve months after the end of the original reflection period, determined in accordance with the previous paragraphs of this article.
  • If the entrepreneur has provided the consumer with the information referred to in the preceding paragraph within twelve months from the start date of the original reflection period, the reflection period expires 14 days after the day on which the consumer received that information. Article 7 – Obligations Of The Consumer During The Reflection Period
  • 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 only unpack or use the product to the extent necessary to establish the nature, characteristics, and functioning of the product. The starting point here is that the consumer may only handle and inspect the product as he would be allowed to do in a shop.

    2. The consumer is only liable for depreciation of the product that is the result of a way of handling the product that goes beyond what is allowed in paragraph 1.

    3. The consumer is not liable for depreciation of the product if the entrepreneur has not provided all legally required information about the right of withdrawal before or at the conclusion of the agreement.
    Exercise Of The Right Of Withdrawal By The Consumer And Costs Thereof
    1. If the consumer exercises his right of withdrawal, he must report this within the reflection period using the model withdrawal form or in another unequivocal manner to the entrepreneur.

    2. As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the consumer sends the product back or hands it over to (an authorized representative of) the entrepreneur. This is not necessary if the entrepreneur has offered to collect the product himself. In any case, the consumer has observed the return period if he sends the product back before the reflection period has expired.

    3. The consumer returns the product with all delivered accessories, if reasonably possible in original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.

    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 entrepreneur has not reported that the consumer must bear these costs or if the entrepreneur indicates that he will bear the costs himself, the consumer does not need to bear the costs of returning the product.

    6. If the consumer withdraws after having expressly requested that the provision of the service or the supply of gas, water, or electricity not made ready for sale in a limited volume or quantity begin during the reflection period, the consumer owes the entrepreneur an amount proportional to that part of the obligation that has been fulfilled by the entrepreneur at the time of withdrawal, compared with the full fulfillment of the obligation.

    7. The consumer does 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 for the supply of district heating if:
  • the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal, the cost reimbursement on withdrawal, or the model withdrawal form; or
  • the consumer has not expressly requested the commencement of the performance of the service or the supply of gas, water, electricity, or district heating during the reflection period.

    8. The consumer does not bear any costs for the full or partial delivery of digital content not supplied on a tangible medium if:
  • he has not expressly agreed to the commencement of the fulfillment of the contract before the end of the reflection period;
  • he has not acknowledged losing his right of withdrawal upon granting his consent; or
  • the entrepreneur has failed to confirm this declaration from the consumer.

    9. If the consumer exercises his right of withdrawal, any additional agreements are automatically dissolved.
  • Obligations Of The Entrepreneur In Case Of Withdrawal
    1. If the entrepreneur makes the possibility of electronic notification of withdrawal available, he shall immediately send a confirmation of receipt after receiving this notification.

    2. The entrepreneur reimburses all payments from the consumer, including any delivery costs charged by the entrepreneur for the returned product, immediately but within 14 days following the day on which the consumer informs him of the withdrawal. Unless the entrepreneur offers to collect the product himself, he may wait to refund until he has received the product or until the consumer proves he has returned the product, depending on which time is earlier.

    3. The entrepreneur uses the same payment method for the refund that the consumer used unless the consumer agrees to a different method. The refund 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 entrepreneur does not need to refund the additional costs for the more expensive method.
    Exclusion Of The Right Of Withdrawal
    The entrepreneur can exclude the following products and services from the right of withdrawal, but only if the entrepreneur has clearly stated this at the offer, or at least in time before the conclusion of the contract: 1. Products or services whose price is tied to fluctuations in the financial market over which the entrepreneur has no influence and which may occur within the withdrawal period

    2. Contracts concluded during a public auction. A public auction is a sales method where products, digital content, and/or services are offered by the entrepreneur to the consumer who is personally present or given the opportunity to be present at the auction, under the leadership of an auctioneer, and where the successful bidder is obliged to take the products, digital content, and/or services;

    3. Service contracts after full execution of the service, but only if:
  • the execution has begun with the consumer’s express prior consent; and
  • the consumer has declared that he loses his right of withdrawal once the entrepreneur has fully executed the contract;

    4. Package travel as referred to in article 7:500 of the Dutch Civil Code and passenger transport contracts;

    5. Service contracts for the provision of accommodation, if the contract provides for a specific date or period of execution and other than for residential purposes, goods transport, car rental services, and catering.
  • The Price
    1. During the validity period mentioned in the offer, the prices of the offered products and/or services shall not be increased, except for price changes resulting from changes in VAT rates.

    2. Contrary to the previous paragraph, the entrepreneur may offer products or services whose prices are bound to fluctuations in the financial market over which the entrepreneur has no influence, with variable prices. This bond to fluctuations and the fact that any prices mentioned are indicative will be stated in the offer.

    3. Price increases within 3 months after the conclusion of the agreement are only permitted if they are the result of legal regulations or provisions.

    4. Price increases starting 3 months after the conclusion of the agreement are only permitted if the entrepreneur has stipulated this and:
  • they are the result of legal regulations or provisions;
  • or the consumer has the power to terminate the agreement as of the day the price increase takes effect.

    5. The prices mentioned in the offer of products or services include VAT.
  • Compliance and Additional Warranty
    1. The entrepreneur guarantees that the products and/or services comply with the agreement, the specifications mentioned in the offer, to the reasonable requirements of reliability and/or usability and the existing legal provisions and/or government regulations on the date the agreement is concluded. If agreed upon, the entrepreneur also guarantees that the product is suitable for other than normal use.

    2. An additional warranty provided by the entrepreneur, his supplier, manufacturer or importer never limits the legal rights and claims that the consumer, on the basis of the agreement, can enforce against the entrepreneur if the entrepreneur has failed to fulfil his part of the agreement.

    3. An additional warranty is defined as 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 required to do in case he has failed to fulfil his part of the agreement.
     Delivery and Execution
    1. The entrepreneur shall observe the greatest possible care when receiving and executing product orders and when assessing requests for the provision of services.
    2. The address that the consumer makes known to the entrepreneur shall be considered the place of delivery.
    3. With due observance of what is mentioned in Article 4 of these general terms and conditions, the entrepreneur shall execute accepted orders expeditiously but within 30 days at the latest, unless another delivery period has been agreed. If the delivery is delayed, or if an order cannot be executed or only partially, the consumer will receive notice of this no later than 30 days after placing the order.
    4. In this case, the consumer has the right to terminate the agreement without any cost and is entitled to any compensation. Following termination as per the previous paragraph, the entrepreneur will refund the amount paid by the consumer promptly.
    5. The risk of damage and/or loss of products rests with the entrepreneur until the moment of delivery to the consumer or a pre-designated and to the entrepreneur announced representative, unless explicitly agreed otherwise.
    Duration Transactions: Duration, Cancellation and Extension
    Cancellation:

    1. The consumer may terminate an agreement entered into for an indefinite period, which extends to the regular delivery of products (including electricity) or services, at any time by observing the cancellation rules agreed upon and a notice period of no more than one month.

    2. The consumer may terminate an agreement entered for a definite period, which extends to the regular delivery of products (including electricity) or services, at any time towards the end of the definite period, observing the agreed upon cancellation rules and a notice period of no more than one month.

    3. The consumer may:
  • cancel at any time and not be limited to cancellation at a particular time or in a particular period;
  • at least cancel in the same manner as they are entered into by him;
  • always cancel with the same notice period as the entrepreneur has stipulated for himself.

    Extension:

    1. An agreement entered into for a definite period, which extends to the regular delivery of products (including electricity) or services, may not be automatically extended or renewed for a fixed duration.

    2. Contrary to the previous paragraph, an agreement entered into for a fixed period, which extends to the regular delivery of daily, news, and weekly papers and magazines may be automatically extended for a maximum of three months if the consumer can terminate the extended agreement at the end of the extension with a notice period of no more than one month.

    3. An agreement entered for a fixed period and that extends to the regular delivery of products or services may only be automatically extended for an indefinite period if the consumer may terminate at any time with a notice period of no more than one month and a notice period of three months in case the agreement extends to the regular but less than monthly delivery of daily, news, and weekly papers and magazines.

    4. An agreement for a limited period of time for the regular trial delivery of daily, news, and weekly papers and magazines (trial or introductory subscription) will not be automatically continued and will end automatically after the trial or introductory period.

    Duration:

    If an agreement has a duration of more than one year, the consumer may cancel the agreement at any time with a notice period of no more than one month, unless reasonableness and fairness oppose cancellation before the end of the agreed duration.
  • Payment
    1. Unless otherwise stipulated in the agreement or additional terms and conditions, the amounts owed by the consumer must be paid within 14 days after the commencement of the reflection period as referred to in Article 6, paragraph 1. 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, a prepayment of more than 50% may never be stipulated in the general terms and conditions. If a prepayment has been agreed upon, the consumer may not assert any rights regarding the execution of the order or service(s) before the stipulated prepayment has been made.

    3. The consumer has the duty to report inaccuracies in provided or stated payment details to the entrepreneur without delay.

    4. If the consumer does not meet his payment obligation(s) in time, after he has been informed by the entrepreneur of the late payment and the entrepreneur has granted the consumer a period of 14 days to meet his payment obligations, after the failure to pay within this 14-day period, the statutory interest on the amount owed and the entrepreneur is entitled to charge the extrajudicial collection costs incurred by him. These collection costs will not exceed: 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 aforementioned amounts and percentages in favour of the consumer.
    Complaints Procedure
    1. The entrepreneur has a well-publicized complaints procedure and handles complaints in accordance with this procedure.

    2. Complaints about the implementation of the agreement must be submitted to the entrepreneur within a reasonable time after the consumer has noticed the defects, with a full and clear description.

    3. Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint is expected to require a longer processing time, the entrepreneur will respond within 14 days with an acknowledgement of receipt and an indication of when the consumer can expect a more detailed answer.

    4. A complaint about a product, service, or the entrepreneur’s service can also be submitted via a complaint form on the consumer page of the Thuiswinkel.org website at www.thuiswinkel.org. The complaint is then sent to both the concerned entrepreneur and Thuiswinkel.org.

    5. The consumer must give the entrepreneur at least 4 weeks to resolve the complaint in mutual consultation. After this period, a dispute that is eligible for dispute resolution arises.
    Disputes
    1. Contracts between the entrepreneur and the consumer to which these general terms and conditions apply are exclusively governed by Dutch law.

    2. Disputes between the consumer and the entrepreneur regarding the formation or execution of agreements relating to products and services to be delivered or delivered by this entrepreneur can be submitted to the Disputes Committee Thuiswinkel, P.O. Box 90600, 2509 LP in The Hague (www.sgc.nl), subject to the conditions set out below, by both the consumer and the entrepreneur.

    3. A dispute will only be handled by the Disputes Committee if the consumer has first submitted the complaint to the entrepreneur within a reasonable time.

    4. If the complaint does not lead to a resolution, the dispute must be submitted to the Disputes Committee in writing or in another form determined by the Committee, no later than 12 months after the date on which the consumer submitted the complaint to the entrepreneur.

    5. If the consumer wishes to submit a dispute to the Disputes Committee, the entrepreneur is bound by this choice. Preferably, the consumer should notify the entrepreneur about this first. If the entrepreneur wants to submit a dispute to the Disputes Committee, the consumer must declare within five weeks after a request made in writing by the entrepreneur whether they also wish to do so or want the dispute to be handled by the competent court.

    6. If the entrepreneur does not hear the consumer’s choice within the period of five weeks, then the entrepreneur is entitled to submit the dispute to the competent court.

    7. The Disputes Committee will issue a ruling under the conditions as determined in the regulations of the Disputes Committee (www.degeschillencommissie.nl/over-ons/de-commissies/2404/thuiswinkel). The decisions of the Disputes Committee are done by way of binding advice.

    8. The Disputes Committee will not handle a dispute or will cease the handling if the entrepreneur has been granted a suspension of payment, if they have become bankrupt, or have effectively ended their business activities before the committee has dealt with the dispute at a hearing and has issued a final judgment.

    9. If, in addition to the Disputes Committee Thuiswinkel, another recognized dispute committee affiliated with the Foundation for Consumer Complaints Committees (SGC) or the Financial Services Complaints Institute (Kifid) is competent, for disputes mainly concerning the method of sales or services provided at a distance, the Disputes Committee Thuiswinkel will preferably have jurisdiction. For all other disputes, the other recognized dispute committee affiliated with SGC or Kifid will have jurisdiction.
    Industry Guarantee
    1. Thuiswinkel.org guarantees the fulfillment of binding advices by the Disputes Committee Thuiswinkel by its members unless the member decides to submit the binding advice to the court for review within two months after its sending. This guarantee revives if the binding advice is upheld after review by the court and the judgment proving this has become final. Up to an amount of €10,000 per binding advice, this amount will be paid out by Thuiswinkel.org to the consumer. For amounts exceeding €10,000 per binding advice, €10,000 will be paid out. For the excess, Thuiswinkel.org has an obligation to make an effort to ensure that the member complies with the binding advice.

    2. To apply this guarantee, it is required that the consumer makes a written appeal to Thuiswinkel.org and that he transfers his claim on the entrepreneur to Thuiswinkel.org. If the claim on 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 Thuiswinkel.org, after which this organization will claim the payment in its own name and costs in court to satisfy the consumer.
    Additional or Different Provisions
    1. Additional or from these general terms and conditions deviating provisions may not be to the consumer’s detriment 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 medium.
    Amendment to the General Terms and Conditions of Thuiswinkel
    1. Thuiswinkel.org will only amend these general terms and conditions after consultation with the Consumers’ Association.

    2. Amendments to these terms and conditions are only effective after they are published in the appropriate way, provided that in case of applicable amendments during the term of an offer, the provision that is most favourable to the consumer will prevail. Dutch law is applicable to offers and agreements between the entrepreneur and the consumer where these general terms and conditions apply, even if the consumer lives abroad. The Vienna Sales Convention does not apply.
    Additional Clause
    In the event of an end-of-life cycle of the purchased product, the entrepreneur commits to a take-back scheme, offering the consumer options for recycling or disposing of the product responsibly, at no additional cost.

    Thuiswinkel.org

    www.thuiswinkel.org

    Horaplantsoen 20, 6717 LT Ede

    Appendix I: Model withdrawal form

    Model withdrawal form

    (fill out and return this form only if you want to withdraw from the contract)

    To: [name of entrepreneur]

    [geographical address of entrepreneur]

    [fax number of entrepreneur, if available]

    [email address or electronic address of entrepreneur]

    I/We* hereby inform you that I/we* wish to revoke our contract concerning

    the sale of the following products: [description of product]*

    the delivery of the following digital content: [description of digital content]*

    the performance of the following service: [description of service]*,

    revoke/revoke*

    Ordered on*/received on* [date of order for services or date of receipt for products] [Name of consumer(s)] [Address of consumer(s)] [Signature of consumer(s)] (only when this form is submitted on paper) [Date]

    Cross out what does not apply or fill in what applies.

    For the Dutch version, please click here.
    For the German version, please click here