- Clause 1- Definitions
- Clause 2- Identity of the Trader
- Clause 3- Applicability
- Clause 4- The Offer
- Clause 5- The Contract
- Clause 6- Right of Withdrawal
- Clause 7- Costs in the case of Withdrawal
- Clause 8- Exclusion of Right of Withdrawal
- Clause 9- The Price
- Clause 10- Conformity and Warranty
- Clause 11- Delivery and Implementation
- Clause 12- Extended transactions
- Clause 13- Payment
- Clause 14- Retention of Title
- Clause 15- Complaints Procedure
- Clause 16- Disputes
- Clause 17- Additional or Varying Provisions
- Clause 18- Changes to the MODINT Distance Selling Conditions for Consumers
DEFINITIONS – Clause: 1
In these conditions, the concepts given below are defined as follows:
- Reconsideration Period: the period within which the consumer can use his right of withdrawal;
- Consumer: the natural person that is not acting in the exercise of a profession or on behalf of a company and who enters a distance contract with the trader;
- Day: calendar day;
- Continuing performance contract: a distance-selling contract concerning a series of products for which the offer and/or purchasing obligation is spread over a longer period;
- Durable medium: each means that enables the consumer or trader to store information personally addressed to him in a manner that makes future consultation and unchanged reproduction of the saved information possible;
- Right of Withdrawal: the possibility for the consumer to withdraw from the distance contract within the reconsideration period;
- Trader: the legal entity that offers products to consumers at a distance;
- Distance Contract: a contract in which, within the framework of a system organized by the trader for the distance selling of products, up to and including the conclusion of the contract, exclusive use is made of one or more technologies for distance communication;
- Technology for distance communication: means that can be used to conclude a contract, without requiring the consumer and trader to come together in the same space at the same time.
IDENTITY OF THE TRADER – Clause: 2
Name of trader: NICOTEX
Registered address: Albert Cuypstraat 260 3e, 1073BR, Amsterdam, The Netherlands
Phone number: 0615900262
Office Hours: Can be reached by phone on Monday through Friday from 09:00 -17:00h.
E-mail address: firstname.lastname@example.org
Chamber of Commerce number: 65366840
VAT identification number: NL213295763B01
APPLICABILITY – Clause: 3
- These general conditions apply to each offer of the trader and to each distance contract concluded between the trader and consumer.
- Before the distance contract is concluded, the text of these general conditions is made available to the consumer. If this is not reasonably possible, then, before the distance contract is concluded, it shall be stated that the general conditions can be read at the trader’s location and that they will be posted to the consumer free of charge at the consumer’s request as soon as possible.
- If the distance contract is concluded by electronic means, then, in departure from the previous paragraph and before the distance contract is concluded, the text of these general conditions can be made available to the consumer by electronic means in such a manner that the consumer will be able to save this text in a simple manner on a durable medium. If this is not reasonably possible, then, before the contract is concluded, it will be stated where the general conditions can be read by electronic means and that, at the consumer’s request, they shall be sent to the consumer by electronic means or in another manner free of charge.
THE OFFER – Clause: 4
- If an offer has a limited period of validity or is made under certain conditions, this will be expressly stated in the offer.
- The offer contains a complete and precise description of the products on offer. The description is sufficiently detailed to make a good assessment of the offer by the consumer possible. If the trader makes use of images, they are a faithful representation of the products offered. Clear mistakes or obvious errors in the offer are not binding on the trader.
- Each offer contains sufficient information so that it is clear for the consumer what the rights and obligations are that are attached to an acceptance of the offer.
This concerns in particular:
- The price including taxes;
- Any costs of delivery;
- The way in which the contract shall be concluded and what actions are necessary for this;
- The application or non-application of the right of withdrawal;
- The method of payment, delivery and implementation of the contract;
- The period for the acceptance of the offer or the period within which the trader guarantees the price;
- The amount of the charge for distance communication if the costs of using the technology for distance communication are calculated on a basis other than the regular basic charge for the means of communication used;
- Whether the contract will be filed after it is concluded and, if so, the manner in which it can be consulted by the consumer;
- The manner in which the consumer, before concluding the contract, can check the data he has provided in the context of the contract and correct it if desired;
- The codes of conduct which the trader has submitted himself to and the manner in which the consumer can consult these codes of conduct by electronic means;
- The minimum duration of the distance selling contract in case of a continuing performance contract.
THE CONTRACT – Clause: 5
- Subject to the provision in paragraph 4, the contract will be concluded at the moment the consumer accepts the offer and meets the conditions set for it.
- If the consumer has accepted the offer by electronic means, the trader will confirm the reception of the acceptance of the offer immediately by electronic means. As long as the trader does not confirm the reception of this acceptance, the consumer can dissolve the contract.
- If the contract is concluded by electronic means, then the trader shall take suitable technical and organizational measures to secure the electronic transfer of data and he will ensure there is a secure web environment. If the consumer can pay by electronic means, the trader shall take suitable security measures to safeguard this payment.
- The trader can – within legal frameworks – ascertain whether the consumer is able to meet his payment obligations, as well as inform himself of all those facts and factors that are important for the sound conclusion of the distance contract. If, on the basis of this investigation, the trader has good grounds not to conclude the contract, then he is entitled to refuse an order or request, stating his reasons for doing so, or to attach special conditions to the implementation of the contract.
- Along with the product, the trader shall send the following information to the consumer in writing or in such a manner the consumer can save that it in an accessible manner on a durable medium:
A) The street address of the establishment of the trader where the consumer can submit complaints;
B) The conditions under which and the way in which the consumer can make use of the right of withdrawal, or a clear statement with respect to the exclusion of the right of withdrawal;
C) The information on warranties and the existing service after purchase;
D) The data recorded in Clause 4, paragraph 3 of these conditions, unless the trader has already provided this data to the consumer prior to the implementation of the contract;
E) The cancellation requirements if the contract has a duration of more than one year or if it concerns a contract of unlimited duration.
F) In case of continuing performance, this latter provision only applies to the first delivery.
RIGHT OF WITHDRAWAL – Clause: 6
- With the purchase of products, the consumer is given the opportunity to dissolve the contract, without giving a reason for doing so, for a period of 14 days. This reconsideration period commences on the day after the consumer, or a representative designated in advance and announced to the trader by the consumer, receives the product.
- During the reconsideration period, the consumer will carefully handle the product and the packaging. He shall unpack or use the product only to the extent to which it is necessary to assess whether or not he wishes to keep the product. If he makes use of his right of withdrawal, he shall return the product with all delivered accessories and – if reasonably possible – in the original condition and packaging to the trader, along with a fully completed withdrawal form which is enclosed by the trader at the initial delivery of the product to consumer, all in accordance with the reasonable and clear instructions given by the trader.
COSTS IN CASE OF WITHDRAWAL – Clause: 7
- If the consumer makes use of his right of withdrawal, he shall bear, at a maximum, the costs of returning the product.
- If the consumer has paid an amount, then the trader shall refund this amount as soon as possible, yet at the latest within 30 days after the return or withdrawal.
EXCLUSION OF RIGHT OF WITHDRAWAL – Clause: 8
- The trader can exclude the right of withdrawal from the consumer in so far as this is provided for in paragraph 2. The exclusion of the right of withdrawal pertains only if the trader has stated this clearly in the offer or, in any case, in time before the conclusion of the contract.
- Exclusion of the right of withdrawal is only possible for products:
A) That have been created by the trader in accordance with the specifications of the consumer;
B) That are clearly of a personal nature;
C) That, due to their nature, cannot be returned;
D) That spoil or age quickly;
E) Whose price is connected to fluctuations on the financial market over which the trader has no control.
THE PRICE – Clause: 9
- During the period of validity stated in the offer, the prices of the products offered will not be increased, with the exception of price changes resulting from changes in VAT rates.
- In departure from the previous paragraph, the trader can offer products whose prices are connected to fluctuations on the financial market over which the trader has no control at variable prices. This connection to fluctuations and the fact that any prices given are recommended prices shall be stated in the offer.
- Price increases occurring within 3 months after the conclusion of the contract are only permitted if they are the result of legal regulations or provisions;
- Price increases starting 3 months after the conclusion of the contract are only permitted if the trader has insisted on this and:
A) These increases are the result of legal regulations or provisions; or
B) The consumer is authorized to cancel the contract effective on the day on which the increase commences.
C) The prices given in the offer of products include VAT.
CONFORMITY AND WARRANTY – Clause: 10
- The trader guarantees that the products meet the contract requirements, the specifications stated in the offer, the reasonable requirements of sound quality and/or usability and the legal provisions and/or government regulations existing on the date on which the contract was concluded. If agreed to, the trader also guarantees that the product is suitable for use other than normal use.
- A warranty provided by the trader, manufacturer or importer does not in any way impede the legal rights and claims that the consumer can invoke against the trader on the basis of the contract.
DELIVERY AND IMPLEMENTATION – Clause: 11
- The trader shall take the utmost care when receiving and carrying out orders for products.
- The place of delivery is the address that the consumer makes known to the company.
- In accordance with what is stipulated on this in Clause 4 of these general conditions, the company shall carry out the accepted orders with due speed, yet no later than within 30 days, unless a longer delivery period is agreed. If the delivery is delayed, or if an order cannot be carried out or can only be partially carried out, then the consumer shall be informed of this no later than 30 days after he has placed the order. In this case, the consumer has the right to dissolve the contract without incurring costs and the right to possible damages. These damages can never amount to more than the value of the invoice.
- If the contract is dissolved in accordance with the previous paragraph, then the trader shall refund the amount that the consumer has paid as soon as possible, yet no later than within 30 days after the dissolution.
- If it appears impossible to deliver a product that has been ordered, then the trader shall make an effort to make a replacement article available. On delivery, at the latest, it will be stated in a clear and understandable manner that a replacement articles is being delivered. In the case of replacement articles, the right of withdrawal cannot be excluded. The costs of any return shipment shall be borne by the trader.
- The risk of damage and/or the loss of products is borne by the trader up to the moment delivery is made to the consumer or to a representative designated in advance and made known to the trader, unless otherwise is expressly agreed.
CONTINUING PERFORMANCE AGREEMENTS – Clause: 12
- The Consumer may at all times terminate a contract that was concluded for an indefinite time and which extends to the regular delivery of products, with due observance of the termination rules and subject to not more than one month’s notice.
PAYMENT – Clause: 13
- As far as no other date has been agreed, sums payable by the consumer should be paid within 14 days after the start of the withdrawal period as stipulated in Clause 6 paragraph B.
- When selling products to consumers, the general terms and conditions may never stipulate an advance payment in excess of 50%. Where advance payment is stipulated, the consumer cannot invoke any rights whatsoever in relation to the implementation of the order in question before the stipulated advance payment has been made.
- The consumer is required to report inaccuracies in the payment information provided or reported immediately to the trader.
- In case of transfer to a bank account or electronic payment, the date on the trader’s bank statement applies as the date on which the payment has occurred.
- The consumer who hasn’t paid at the latest on the due date, without this requiring any warning or proof of default, is in default against the trader, with exception of the situations as stipulated in clause 15 paragraph 2. From that point on, consumer is owed statutory interest. The interest shall be calculated over the total amount due until full payment has been fulfilled.
- In the event of non-payment on the part of the consumer, the trader has the right, subject to statutory limitations, to charge the consumer reasonable costs about which the consumer was informed in advance.
RETENTION OF TITLE – Clause: 14
All products delivered by the trader in the context of the contract remain the property of the trader until the consumer has properly fulfilled all obligations ensuing from the contract(s) concluded with the trader.
COMPLAINTS PROCEDURE – Clause: 15
- The trader has a sufficiently published complaints procedure and handles any complaint in accordance with this complaints procedure.
- Complaints about the implementation of the contract should be submitted within due time, i.e. within two months at the latest, to the trader with a full and clear description of the complaint after the consumer has discovered the shortcomings in question.
- Complaints submitted to the trader will be responded to within a period of 14 days calculated from the date of reception. If a complaint requires a foreseeably longer time to handle, the trader shall respond within the period of 14 days with a confirmation of reception and an indication of when the consumer can expect to receive a more detailed response.
- In the event of complaints, the consumer is only entitled to withhold payment of that part of the invoice that is in reasonable proportion to the substance and seriousness of the complaint. This does not release the consumer from his obligation to pay the remaining sum of the invoice within the agreed period.
- If the complaint cannot be solved in consultation between the parties, then the dispute shall be brought before the competent court.
DISPUTES – Clause: 16
- Contracts between the trader and the consumer to which these general conditions pertain are subject to Dutch law. Disputes between the consumer and the trader about the conclusion or implementation of contracts concerning products that are to be delivered or that have been delivered by this trader shall be brought before the competent court.
- In departure from paragraph 1, the trader shall, when the consumer does not reside in the Netherlands, institute legal proceedings against the consumer at the court located in the consumer’s city of residence and subject to the law of the country in which the consumer resides.
- If any part of these general conditions is declared to be wholly or partially invalid or not applicable, or in any other way is not recognized due to it contravening prevailing national laws, then the other provisions of these general conditions shall remain in full force.
ADDITIONAL OR VARYING PROVISIONS – Clause: 17
Additional provisions or provisions varying from these general conditions may not disadvantage the consumer and should be recorded in writing or in a manner that enables the consumer to save them in an accessible manner on a durable medium.
CHANGES TO THE MODINT DISTANCE SELLING CONDITIONS FOR CONSUMERS – Clause: 18
Changes made in these conditions only take effect after they have been published in an appropriate manner, with the understanding that when applicable changes are made during the course of an offer, the provision that is most favorable to the consumer shall prevail.
Amsterdam, 1st March, 2016