General Terms and Conditions
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General Terms and Conditions of Home-Shopping
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 at withdrawal
Article 10 - Exclusion of the right of withdrawal
Article 11 - The price
Article 12 - Performance and additional warranty
Article 13 - Delivery and execution
Article 14 - Duration transactions: duration, termination and renewal
Article 15 - Payment
Article 16 - Complaints
Article 17 - Disputes
Article 18 - Industry guarantee
Article 19 - Additional or different stipulations
Article 20 - Amendment to the General Terms and Conditions of Home Shopping
Article 1 - Definitions
In these terms and conditions, the following definitions apply:
1. Supplementary contract: a contract whereby the consumer acquires products, digital content and/or services in relation to a distance contract and these products, digital content and/or services are supplied by the trader or by a third party on the basis of an arrangement 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 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: a contract for the regular supply of goods, services and/or digital content for a specific period of time;
7. Durable medium: every tool - including e-mail - which enables the consumer or entrepreneur to store information which is addressed to him personally, in a way that allows for future consultation or use during a period which is tailored to the purpose for which the information is intended, and which allows for the unaltered reproduction of the stored information;
8. Right of withdrawal: the possibility for the consumer to waive the distance contract within the cooling-off period;
9. Trader: the natural or legal person who is a member of Thuiswinkel.org and offers products, (access to) digital content and/or services to consumers from a distance;
10. Distance contract: a contract concluded between the trader and the consumer within the framework of an organized system for the distance sale of products, digital content and/or services, whereby sole or joint use is made of one or more techniques for distance communication up to and including the moment at which the contract is concluded;
11. Model form for withdrawal: the European model form for withdrawal included in Annex I of these Terms and Conditions; Annex I does not need to be provided if the Consumer does not have a right of withdrawal with regard to his order;
12. Technique for distance communication: means that can be used for the conclusion of 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
Name entrepreneur: Topgeschenken Nederland BV
Acting under the name(s):
Topbloemen.nl
Establishment address:
Noorderdreef 60
2153LL Nieuw-Vennep
Phone number: 088-1108000
Reachability:
Monday to Thursday from 08.30 am to 20.00 pm
From Friday to Saturday from 08.30 am to 17.00 pm.
E-mail address: klantenservice@topbloemen.nl
KvK number: 34108906
VAT number: NL851718383B01
Article 3 - Applicability
1. These general conditions apply to any offer from the entrepreneur and any agreement reached at a distance between entrepreneur and consumer.
2. Before the remote agreement is concluded, the text of these general conditions will be made available to the consumer. If this is not reasonably possible, the entrepreneur will indicate, before the remote agreement is concluded, how the general conditions can be viewed at the entrepreneur and that they will be sent free of charge as soon as possible, at the consumer's 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 conditions may be made available to the consumer by electronic means in such a way that the consumer can easily store them on a durable data carrier. If this is not reasonably possible, before the distance contract is concluded, it will be indicated where the general conditions can be consulted electronically and that they will be sent free of charge to the consumer, at his request, either electronically or in another way.
4. In case in addition to these general conditions also specific product or service conditions apply, the second and third paragraphs shall apply mutatis mutandis and the consumer in case of conflicting conditions 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 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 allow a good assessment of the offer by the consumer. If the entrepreneur uses images, these are a true reflection of the products, services and / or digital content offered. Obvious mistakes or obvious errors in the offer will not bind the entrepreneur.
3. Each offer contains such information that it is clear to the consumer what rights and obligations are attached to accepting the offer.
Article 5 - The agreement
1. The contract is concluded, subject to that which is stipulated in paragraph 4, at the moment at which the consumer accepts the offer and the conditions thereby stipulated are fulfilled.
2. If the consumer has accepted the offer electronically, the trader will immediately confirm receipt of electronic acceptance of the offer. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer may dissolve the contract.
3. If the agreement is created electronically, the entrepreneur will take appropriate technical and organizational measures to secure the electronic transmission of data and will ensure a secure web environment. If the consumer is able to pay electronically, the entrepreneur will observe appropriate security measures.
4. The entrepreneur may, within the limits of the law - inform whether the consumer can meet his payment obligations, as well as all those facts and factors which are important for a responsible conclusion of the distance contract. If, on the basis of this investigation, the entrepreneur has good reason not to enter into the agreement, he is entitled to refuse an order or application or to attach special conditions to the implementation.
5. The entrepreneur will, at the latest upon delivery of the product, service or digital content to the consumer, the following information in writing or in such a way that the consumer in an accessible manner can be stored on a durable medium, send:
a. the visiting address of the establishment of the entrepreneur where the consumer can go with complaints;
b. the conditions on which and the way in which the Consumer may exercise the right of withdrawal, or a clear statement concerning the exclusion of the right of withdrawal;
c. the information on guarantees and existing after-sales service;
d. 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
e. the requirements for terminating the agreement if the agreement has a duration of more than one year or is indefinite;
f. if the consumer has a right of withdrawal, the model form for withdrawal.
6. In case of a duration contract, the provision in the previous paragraph applies only to the first delivery.
Article 6 - Right of withdrawal
For products:
1. The consumer can terminate an agreement related to the purchase of a product during a reflection period of 14 days without giving any reason. The entrepreneur may ask the consumer about the reason for withdrawal, but may not oblige the consumer to give his reason(s).
2. The cooling off period mentioned in paragraph 1 starts on the day after the consumer, or a third party designated by the consumer in advance, and who is not the carrier, has received the product, or:
a. if the consumer has ordered multiple products in the same order: the day on which the consumer, or a third party designated by him, has received the last product. The entrepreneur may, provided he has clearly informed the consumer prior to the ordering process, refuse an order for multiple products with a different delivery time.
b. if the delivery of a product consists of multiple 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 case of 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 not supplied on a tangible medium:
3. The consumer may terminate a service contract and a contract for delivery of digital content not supplied on a tangible medium during 14 days without giving any reason. The trader may ask the consumer about the reason for withdrawal, but may not oblige the consumer to give his reason(s).
4. The cooling off period mentioned in paragraph 3 starts on the day following the conclusion of the agreement.
Extended cooling off period for products, services and digital content not supplied on a tangible medium in the event of failure to inform about the right of withdrawal:
5. If the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model form for withdrawal, the cooling-off period will expire twelve months after the end of the original cooling-off period determined in accordance with the previous paragraphs of this article.
6. If the entrepreneur has provided the consumer with the information referred to in the previous paragraph within twelve months after the start date of the original cooling-off period, the cooling-off period will expire 14 days after the day the consumer received this information.
Article 7 - Obligations of the consumer during the reflection period
1. During the cooling-off period the consumer will handle the product and packaging with care. He will only unpack or use the product to the extent necessary to determine the nature, features 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 store.
2. The consumer is only liable for depreciation of the product resulting from a manner of handling the product that goes 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 about the right of withdrawal before or at the conclusion of the contract.
Article 8 - Exercise of the right of withdrawal by the consumer and costs thereof
1. If the consumer exercises his right of withdrawal, he shall notify the entrepreneur within the cooling-off period by means of the model form for withdrawal or in any other unambiguous manner.
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 hand it over to (an authorized representative of) the entrepreneur. This is not necessary if the entrepreneur has offered to pick up the product himself. The consumer has in any case complied with the return period if he returns the product before the cooling-off period has expired.
3. The consumer shall return the product with all delivered accessories, if reasonably possible in original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.
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 to bear the costs himself, the consumer does not have to bear the costs of return shipment.
6. If the consumer withdraws after first explicitly requesting that the performance of the service or the supply of gas, water or electricity not made ready for sale in a limited volume or certain quantity shall commence during the withdrawal period, the consumer shall owe the entrepreneur an amount that is proportionate to that part of the commitment that has been fulfilled by the entrepreneur at the time of withdrawal, compared to the full extent of the commitment.
7. The consumer shall not bear any costs for the performance of services or the supply of water, gas or electricity, which are not made ready for sale in a limited volume or quantity, or for the supply of district heating, if:
a. the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal, the cost compensation in the event of withdrawal or the model form for withdrawal, or;
b. the consumer has not expressly requested the commencement of the performance of the service or supply of gas, water, electricity or district heating during the cooling-off period.
8. The consumer shall not bear any cost for the complete or partial delivery of digital content not supplied on a tangible medium if:
a. he has not expressly consented to the commencement of performance of the contract before the end of the cooling-off period prior to its delivery;
b. he has not acknowledged losing his right of withdrawal when giving his consent; or
c. the trader has failed to confirm this declaration by the consumer.
9. If the consumer makes use of his right of withdrawal, all additional agreements will be dissolved by operation of law.
Article 9 - Obligations of the entrepreneur in case of withdrawal
1. If the entrepreneur makes the notification of withdrawal by the consumer possible electronically, he shall send an acknowledgement of receipt of this notification without delay.
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 trader offers to collect the product himself, he may wait with repayment until he has received the product or until the consumer demonstrates that he has returned the product, whichever comes first.
3. The entrepreneur uses for reimbursement the same means of payment that the consumer has used, unless the consumer agrees to a different method. The refund is free of charge for the consumer.
4. If the consumer has chosen a more expensive method of delivery than the cheapest standard delivery, the entrepreneur does not have to refund 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 clearly stated this fact when making the offer, or at least in good time prior to conclusion of the contract:
1. Products or services of which the price is linked to fluctuations on the financial market over which the entrepreneur has no influence and which can occur within the withdrawal period
2. Contracts concluded during a public auction. A public auction is defined as a method of sale whereby products, digital content and/or services are offered by the trader to the consumer who is present in person or has the possibility of being present in person at the auction, under the direction of an auctioneer, and whereby the successful bidder is obliged to purchase the products, digital content and/or services;
3. Service contracts, after full performance of the service, but only if:
a. the execution has started with the consumer's explicit prior consent; and
b. the consumer has declared that he loses his right of withdrawal as soon as the entrepreneur has completely executed the contract;
4. Package holidays as referred to in article 7:500 Civil Code and contracts of passenger transport;
5. Service contracts for the provision of accommodation, if the contract provides for a specific date or period of performance and other than for residential purposes, transport of goods, car rental services and catering;
6. Agreements relating to leisure activities, if the agreement provides for a certain date or period of performance;
7. Products made to the consumer's 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;
8. Products that spoil quickly or have a limited shelf life;
9. Sealed products that are not suitable for return for reasons of health protection or hygiene and whose seal has been broken after delivery;
10. Products that after delivery by their nature are irrevocably mixed with other products;
11. Alcoholic beverages, the price of which 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 is dependent on fluctuations in the market over which the entrepreneur has no influence;
12. Sealed audio-, video-recordings and computer software, of which the seal has been broken after delivery;
13. Newspapers, magazines or journals, with the exception of subscriptions to these;
14. The delivery of digital content other than on a tangible medium, but only if:
a. the execution has started 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 mentioned 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 influence, with variable prices. This link to fluctuations and the fact that any prices mentioned are recommended prices will be mentioned with the offer.
3. Price increases within 3 months after the conclusion of the contract are only allowed if they are the result of statutory 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 contract on the day on which the price increase takes effect.
5. The prices mentioned in the offer of products or services include VAT.
Article 12 - Fulfilment of agreement and additional guarantee
1. The entrepreneur guarantees that the products and / or services meet the contract, the specifications stated in the offer, the reasonable requirements of reliability and / or usability and on the date of the conclusion of the agreement existing legal provisions and / or government regulations. If agreed, the entrepreneur also ensures 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 under the agreement can assert against the entrepreneur if the entrepreneur has failed to fulfill his part of the agreement.
3. By additional guarantee is meant any commitment of the entrepreneur, his supplier, importer or producer in which he grants the consumer certain rights or claims that go beyond what he is legally obligated 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 in the execution of orders of products and in 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. With due observance of what is stated in Article 4 of these General Terms and Conditions, the Entrepreneur shall execute accepted orders with convenient speed but at least within 30 days, unless a different delivery period has been agreed. If the delivery has been delayed, or if an order cannot be filled or can be filled only partially, the consumer will be informed about this within 30 days after he has placed the order. The consumer in that case 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 entrepreneur will refund the consumer the amount paid without delay.
5. The risk of damage and/or loss of products rests with the entrepreneur up to the moment of delivery to the consumer or a previously designated and announced to the entrepreneur representative, unless otherwise expressly agreed.
Article 14 - Duration transactions: duration, termination and renewal
Termination:
1. The consumer may contract for an indefinite period and that extends to the regular delivery of products (including electricity) or services, at any time denounce the applicable termination rules and a notice not exceeding one month.
2. The consumer may contract for a definite period and that extends to the regular delivery of products (including electricity) or services, at any time at the end of the fixed term denounce the applicable termination rules and a notice not exceeding one month.
3. The consumer can the agreements mentioned in the previous paragraphs:
a. terminate at all times and not be limited to termination at a specific time or in a specific period;
b. at least cancel in the same way as they were entered into by him;
c. always terminate them with the same notice period as the entrepreneur has stipulated for himself.
Renewal:
4. An agreement that has been entered into for a definite period of time and that 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 contract for a definite period, which extends to the regular delivery of daily news and weekly newspapers and magazines may be tacitly renewed for a fixed period of up to three months if the consumer can terminate this renewed contract towards the end of the extension with a notice of up to one month.
6. A fixed-term contract that has been concluded for the regular supply of products or services may only be extended tacitly for an indefinite period of time if the consumer may terminate at any time with a notice period of up to one month. The notice period is up to three months if the contract is about the regular, but less than once a month, delivery of daily, news and weekly newspapers and magazines.
7. A contract with a limited duration for the regular delivery by way of introduction of daily, news and weekly newspapers and magazines (trial or introductory subscription) is not tacitly continued and ends automatically at the end of the trial or introductory period.
Duration:
8. If a contract lasts more than one year, after one year of the agreement the consumer may at any time terminate with a notice of up to one month, unless the reasonableness and fairness resisting the termination before the end of the agreed term.
Article 15 - Payment
1. Insofar not otherwise specified in the contract or additional conditions, the amounts due by the consumer should 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 contract. In case of a contract to provide a service, this period commences on the day after the consumer has received the confirmation of the agreement.
2. When selling products to consumers, the consumer may never be required in general terms and conditions to pay more than 50% in advance. When prepayment is stipulated, the consumer may not assert any rights regarding the execution of the relevant order or service (s), before the stipulated prepayment has taken place.
3. The consumer has the duty to immediately report inaccuracies in payment data provided or mentioned to the entrepreneur.
4. If the consumer does not meet his payment obligation(s) on 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, starting the day after receipt of the reminder, to still meet his payment obligations, after the failure to pay within this 14-day period, The entrepreneur owes the statutory interest on the amount still owed and is entitled to charge the extrajudicial collection costs incurred by him. These collection costs amount to a maximum: 15% on outstanding amounts up to € 2.500,=; 10% on the next € 2.500,= and 5% on the next € 5.000,= with a minimum of € 40,=. The entrepreneur can deviate from the aforementioned amounts and percentages for the benefit of the consumer.
Article 16 - Complaints procedure
1. The entrepreneur has a sufficiently publicized complaints procedure and handles the complaint in accordance with this complaints procedure.
2. Complaints about the implementation of the agreement must be fully and clearly described and submitted to the entrepreneur within a reasonable time after the consumer has found the defects.
3. Complaints submitted to the entrepreneur shall be answered within a period of 14 days, calculated from the date of receipt. If a complaint requires a foreseeable longer processing time, the entrepreneur will respond within the period of 14 days with a message of receipt and an indication when the consumer can expect a more detailed answer.
4. A complaint about a product, a service or the trader's service can also be submitted via a complaints form on the consumer page of the Thuiswinkel.org website www.thuiswinkel.org. The complaint is then sent both to the trader concerned and to Thuiswinkel.org.
5. The consumer must give the trader at least 4 weeks to resolve the complaint in mutual consultation. After this period, a dispute arises that is subject to the dispute settlement procedure.
Article 17 - Disputes
1. On agreements between the entrepreneur and the consumer to which these general conditions relate, only Dutch law applies.
2. Disputes between a consumer and an trader over the conclusion or exercising of contracts relating to products and services to be supplied by this trader can be put before the Thuiswinkel Disputes Committee, PO Box 90600, 2509 LP in The Hague (www.sgc.nl), by either the consumer or the trader, with due observance of that which is stipulated below.
3. A dispute is only taken up by the Disputes Committee if the consumer has first submitted his complaint to the trader within a reasonable period of 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 determined by the Committee, at the latest 12 months after the date on which the consumer submitted the complaint to the proprietor.
5. When the consumer wishes to submit a dispute to the Disputes Committee, the entrepreneur is bound by this choice. Preferably, the consumer reports this to the entrepreneur first.
6. When the entrepreneur wants to submit a dispute to the Dispute committee, the consumer will have to speak out in writing, within five weeks after a written request made by the entrepreneur, whether he so desires or wants the dispute to be handled by the competent court. If the entrepreneur does not hear the choice of the consumer within the period of five weeks, then the entrepreneur has the right to submit the dispute to the competent court.
7. The Disputes Committee pronounces its judgment under the conditions as set out in the regulations of the Disputes Committee (www.degeschillencommissie.nl/over-ons/de-commissies/2404/thuiswinkel). The decisions of the Disputes Committee are made by way of a binding advice.
8. The Disputes Committee will not deal with a dispute or will terminate their intervention if the trader has been granted a suspension of payments, gone bankrupt or has actually terminated business activities before the committee dealt with the dispute during the session and rendered a final ruling.
9. If, in addition to the Thuiswinkel Disputes Committee, another recognized dispute committee is authorized or affiliated with the Stichting Geschillencommissies voor Consumentenzaken (SGC) or the Klachteninstituut Financiële Dienstverlening (Kifid), the Thuiswinkel Disputes Committee will be authorized, in cases of disputes concerning primarily the method of distance selling or the provision of services. For all other disputes, the other disputes committees recognized by the SGC or Kifid.
Article 18 - Industry Guarantee
1. Thuiswinkel.org guarantees that its members will comply with the binding advice issued by the Thuiswinkel Disputes Committee, unless the member decides to submit the binding advice to a law-court for verification within two months after this advice was sent. This guarantee will be revived if the binding advice is upheld after review by the court and the judgement that shows this has become final. Up to a maximum amount of € 10.000,- per binding advice, this amount will be paid to the consumer by Thuiswinkel.org. For amounts larger than € 10.000,- per binding advice, € 10.000,- will be paid. When the amount exceeds this amount, Thuiswinkel.org has a best-effort obligation to ensure that the member complies with the binding advice.
2. Application of this guarantee requires that the consumer makes a claim in writing to Thuiswinkel.org, and that he transfers his claim on the trader to Thuiswinkel.org. If the claim on the trader exceeds €10.000,-, the consumer will be offered to transfer his claim, as far as it exceeds the amount of €10.000,-, to Thuiswinkel.org, after which this organization will demand payment in court on its own name and costs.
Article 19 - Additional or different stipulations
Additional provisions or provisions that deviate from these general terms and conditions may not be to the consumer's detriment and must be recorded in writing or in such a way that the consumer can store them in an accessible manner on a durable data carrier.
Article 20 - Amendments to the General Terms and Conditions of Home Shopping
1. Amendments to these terms and conditions will only take effect after they have been published in the appropriate way, on the understanding that, in case of applicable amendments during the term of an offer, the provision that is most favourable for the consumer will prevail.
Thuiswinkel.org
www.thuiswinkel.org
Horaplantsoen 20, 6717 LT Ede
PO Box 7001, 6710 CB Ede
Annex I: Model withdrawal form
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
a. To: [ name entrepreneur]
[ geographical address of the entrepreneur]
[ fax number of entrepreneur, if available]
[ email address or electronic address of entrepreneur]
b. I/We* hereby inform* you that I/We* have decided to terminate our agreement concerning
the sale of the following products: [product designation]*
the supply of the following digital content: [digital content designation]*
the provision of the following service: [service designation]*,
revokes/revoked*.
c. Ordered on*/received on* [date of order for services or date of receipt for products].
d. [Name of consumer(s)]
e. [Address consumer(s)]
f. [Signature consumer(s)] (only when this form is submitted on paper)
* Strike out what does not apply or fill in what applies.