TERMS OF SALE - Berbersmudge

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 – Costs in case of withdrawal
Article 8 – Exclusion of the right of withdrawal
Article 9 – The price
Article 10 – Conformity and warranty
Article 11 – Delivery and execution
Article 12 – Long-term transactions: duration, termination, and renewal
Article 13 – Payment
Article 14 – Complaints procedure
Article 15 – Disputes
Article 16 – Additional or deviating provisions

Article 1 – Definitions

In these terms and conditions, the following definitions apply:

Cooling-off period: the period within which the consumer can exercise the right of withdrawal.
Consumer: the natural person who is not acting in the exercise of a profession or business and enters into a distance agreement with the entrepreneur.
Day: calendar day.
Long-term transaction: a distance agreement relating to a series of products and/or services, for which the delivery and/or purchase obligation is spread over time.
Durable data carrier: any means that enables the consumer or entrepreneur to store information addressed personally to them in a way that allows future consultation and unchanged reproduction of the stored information.
Right of withdrawal: the possibility for the consumer to withdraw from the distance agreement within the cooling-off period.
Model form: the model withdrawal form made available by the entrepreneur, which a consumer can complete when wishing to exercise the right of withdrawal.
Entrepreneur: the natural or legal person who offers products and/or services to consumers at a distance.
Distance agreement: an agreement concluded within the framework of a system organized by the entrepreneur for the distance sale of products and/or services, whereby exclusive use is made of one or more techniques for distance communication up to and including the conclusion of the agreement.
Technique for distance communication: means that can be used to conclude an agreement without the consumer and entrepreneur being together in the same place at the same time.
General Terms and Conditions: the present General Terms and Conditions of the entrepreneur.

Article 2 – Identity of the entrepreneur

Berbersmudge
Heilige Geeststraat 5
5611 NH Eindhoven
Netherlands

E: info@berbersmudge.com
Chamber of Commerce (KvK): 81601387

Article 3 – Applicability

These general terms and conditions apply to every offer made by the entrepreneur and to every distance agreement and order concluded between entrepreneur and consumer.

Before the distance agreement is concluded, the text of these general terms and conditions shall be made available to the consumer. If this is not reasonably possible, it shall be indicated before the distance agreement is concluded that the general terms and conditions can be inspected at the entrepreneur’s premises and that they will be sent free of charge to the consumer as soon as possible upon request.

If the distance agreement is concluded electronically, then, contrary to the previous paragraph and before the distance agreement is concluded, the text of these general terms and conditions may be made available to the consumer electronically in such a way that it can easily be stored by the consumer on a durable data carrier. If this is not reasonably possible, it shall be indicated before the distance agreement is concluded where the general terms and conditions can be consulted electronically and that they will be sent to the consumer electronically or otherwise free of charge upon request.

In the event that specific product or service conditions also apply in addition to these general terms and conditions, the second and third paragraphs shall apply mutatis mutandis, and in the event of conflicting conditions, the consumer may always invoke the provision that is most favorable to them.

If one or more provisions in these general terms and conditions are at any time wholly or partially null and void or annulled, the agreement and these terms and conditions shall otherwise remain in force, and the relevant provision shall immediately be replaced by mutual agreement with a provision that approximates the intent of the original provision as closely as possible.

Situations not covered by these general terms and conditions must be assessed in the spirit of these general terms and conditions.

Uncertainties regarding the interpretation or content of one or more provisions of these terms and conditions must be interpreted in the spirit of these general terms and conditions.

Article 4 – The offer

If an offer has a limited validity period or is made subject to conditions, this shall be explicitly stated in the offer.

The offer is without obligation. The entrepreneur is entitled to change and adjust the offer.

The offer contains a complete and accurate description of the products and/or services offered. The description is sufficiently detailed to enable the consumer to properly assess the offer. If the entrepreneur uses images, these are a truthful representation of the products and/or services offered. Obvious mistakes or errors in the offer are not binding on the entrepreneur.

All images, specifications, and information in the offer are indicative and cannot give rise to compensation or dissolution of the agreement.

Images accompanying products are a truthful representation of the products offered. The entrepreneur cannot guarantee that the displayed colors exactly match the real colors of the products.

Each offer contains such information that it is clear to the consumer what rights and obligations are attached to accepting the offer. This concerns in particular:

the price including taxes;
any shipping costs;
the manner in which the agreement will be concluded and which actions are required for this;
whether or not the right of withdrawal applies;
the method of payment, delivery, and execution of the agreement;
the period for accepting the offer, or the period within which the entrepreneur guarantees the price;
the rate for distance communication if the costs of using the technique for distance communication are calculated on a basis other than the regular basic rate for the means of communication used;
whether the agreement is archived after conclusion, and if so, how the consumer can consult it;
the way in which the consumer can check and, if desired, correct the information provided by them in the context of the agreement before concluding the agreement;
any languages in which, in addition to Dutch, the agreement may be concluded;
the codes of conduct to which the entrepreneur has subjected themselves and the manner in which the consumer can consult these codes of conduct electronically; and
the minimum duration of the distance agreement in the case of a long-term transaction.

Article 5 – The agreement

Subject to the provisions of paragraph 4, the agreement is concluded at the moment the consumer accepts the offer and meets the conditions laid down therein.

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

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

Within legal limits, the entrepreneur may investigate whether the consumer is able to meet their payment obligations, as well as all facts and factors relevant to responsibly entering into the distance agreement. If, based on this investigation, the entrepreneur has good grounds not to enter into the agreement, they are entitled to refuse an order or request, stating reasons, or to attach special conditions to the execution.

The entrepreneur shall send the following information to the consumer with the product or service, in writing or in such a way that it can be stored by the consumer in an accessible manner on a durable data carrier:

the visiting address of the entrepreneur’s establishment where the consumer can go with complaints;
the conditions under which and the manner in which the consumer can exercise the right of withdrawal, or a clear statement concerning the exclusion of the right of withdrawal;
information on guarantees and existing after-sales service;
the information included in Article 4 paragraph 3 of these terms, unless the entrepreneur has already provided this information to the consumer before the execution of the agreement;
the requirements for terminating the agreement if the agreement has a duration of more than one year or is indefinite.

In the case of a long-term transaction, the provision in the previous paragraph applies only to the first delivery.

Every agreement is entered into subject to the suspensive condition of sufficient availability of the products concerned.

Article 6 – Right of withdrawal

In the case of delivery of products

When purchasing products, the consumer has the option of dissolving the agreement without stating reasons for a period of 14 days. This cooling-off period starts on the day after the consumer, or a representative previously designated by the consumer and made known to the entrepreneur, receives the product.

During the cooling-off period, the consumer shall handle the product and packaging with care. They shall only unpack or use the product to the extent necessary to determine whether they wish to keep it. If the consumer exercises the right of withdrawal, they shall return the product to the entrepreneur with all delivered accessories and, if reasonably possible, in its original condition and packaging, in accordance with the reasonable and clear instructions provided by the entrepreneur.

If the consumer wishes to exercise the right of withdrawal, they are obliged to notify the entrepreneur within 14 days after receiving the product. The consumer must make this known by means of the model form or by another means of communication such as email. After notifying that they wish to exercise the right of withdrawal, the customer must return the product within 14 days. The consumer must prove that the goods were returned on time, for example by means of proof of shipment.

If the customer has not expressed the wish to exercise the right of withdrawal within the periods referred to in paragraphs 2 and 3, or has not returned the product to the entrepreneur, the purchase is final.

In the case of delivery of services

When services are provided, the consumer has the option of dissolving the agreement without stating reasons for at least 14 days, starting on the day the agreement is concluded.

In order to exercise the right of withdrawal, the consumer shall follow the reasonable and clear instructions provided by the entrepreneur in the offer and/or at the latest upon delivery.

Article 7 – Costs in case of withdrawal

If the consumer exercises the right of withdrawal, at most the costs of return shipment shall be borne by the consumer.

If the consumer has paid an amount, the entrepreneur shall refund this amount as soon as possible, but no later than 14 days after withdrawal. The condition is that the product has already been received back by the webshop operator or conclusive proof of complete return shipment can be provided. Repayment shall be made using the same payment method used by the consumer, unless the consumer explicitly agrees to a different payment method.

If the product is damaged due to careless handling by the consumer, the consumer shall be liable for any depreciation in value of the product.

The consumer cannot be held liable for depreciation in value of the product if the entrepreneur has not provided all legally required information about the right of withdrawal before concluding the purchase agreement.

Article 8 – Exclusion of the right of withdrawal

The entrepreneur may exclude the consumer’s right of withdrawal for products as described in paragraphs 2 and 3. The exclusion of the right of withdrawal only applies if the entrepreneur has clearly stated this in the offer, at least in time before the conclusion of the agreement.

Exclusion of the right of withdrawal is only possible for products:

that have been created by the entrepreneur in accordance with the consumer’s specifications;
that are clearly personal in nature;
that cannot be returned by their nature;
that spoil or age quickly;
whose price is subject to fluctuations in the financial market over which the entrepreneur has no influence;
for single newspapers and magazines;
for audio and video recordings and computer software of which the consumer has broken the seal;
for hygienic products of which the consumer has broken the seal.

Exclusion of the right of withdrawal is only possible for services:

concerning accommodation, transport, restaurant services, or leisure activities to be performed on a specific date or during a specific period;
the delivery of which has begun with the consumer’s express consent before the cooling-off period has expired;
concerning bets and lotteries.

Article 9 – The price

During the validity period stated in the offer, the prices of the products and/or services offered shall not be increased, except for price changes resulting from changes in VAT rates.

Contrary to 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, at variable prices. This dependence on fluctuations and the fact that any prices stated are target prices shall be stated in the offer.

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

Price increases from 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 authority to terminate the agreement from the day on which the price increase takes effect.

The prices stated in the offer of products or services include VAT.

All prices are subject to printing and typographical errors. No liability is accepted for the consequences of printing and typographical errors. In the event of printing and typographical errors, the entrepreneur is not obliged to supply the product according to the incorrect price.

Article 10 – Conformity and warranty

The entrepreneur guarantees that the products and/or services comply with the agreement, the specifications stated in the offer, the reasonable requirements of soundness and/or usability, and the legal provisions and/or government regulations existing on the date the agreement was concluded. If agreed, the entrepreneur also guarantees that the product is suitable for use other than normal use.

A warranty provided by the entrepreneur, manufacturer, or importer does not affect the legal rights and claims that the consumer may assert against the entrepreneur under the agreement.

Any defects or incorrectly delivered products must be reported to the entrepreneur in writing within 2 months of delivery. The products must be returned in the original packaging and in new condition.

The entrepreneur’s warranty period corresponds to the manufacturer’s warranty period. However, the entrepreneur is never responsible for the ultimate suitability of the products for each individual application by the consumer, nor for any advice regarding the use or application of the products.

The warranty does not apply if:

the consumer has repaired and/or modified the delivered products themselves or had them repaired and/or modified by third parties;
the delivered products have been exposed to abnormal conditions or otherwise treated carelessly or contrary to the instructions of the entrepreneur and/or the packaging;
the defect is wholly or partly the result of regulations the government has imposed or will impose regarding the nature or quality of the materials used.

Article 11 – Delivery and execution

The entrepreneur shall exercise the utmost care when receiving and executing orders for products and when assessing applications for the provision of services.

The place of delivery shall be the address made known by the consumer to the company.

Subject to what is stated in paragraph 4 of this article, the company shall execute accepted orders with due speed but no later than 30 days, unless the consumer has agreed to a longer delivery period. If delivery is delayed, or if an order cannot be executed or can only be executed in part, the consumer shall be informed of this no later than 30 days after placing the order. In that case, the consumer has the right to dissolve the agreement free of charge. The consumer is not entitled to compensation.

All delivery periods are indicative. The consumer cannot derive any rights from any stated periods. Exceeding a period does not entitle the consumer to compensation.

In the event of dissolution in accordance with paragraph 3 of this article, the entrepreneur shall refund the amount paid by the consumer as soon as possible, but no later than 14 days after dissolution.

If delivery of an ordered product proves impossible, the entrepreneur shall make every effort to make a replacement item available. At the latest upon delivery, it shall be clearly and understandably stated that a replacement item is being delivered. For replacement items, the right of withdrawal cannot be excluded. The costs of any return shipment shall be borne by the entrepreneur.

The risk of damage and/or loss of products rests with the entrepreneur until the moment of delivery to the consumer or a representative previously designated by the consumer and made known to the entrepreneur, unless expressly agreed otherwise.

Article 12 – Long-term transactions: duration, termination, and renewal

Termination

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

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

The consumer may terminate the agreements referred to in the previous paragraphs:

at any time and not be limited to termination at a specific time or during a specific period;
at least in the same manner as they were entered into by the consumer;
always with the same notice period as the entrepreneur has stipulated for themselves.

Renewal

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

Contrary to the previous paragraph, an agreement entered into for a definite period and which extends to the regular delivery of daily newspapers, news papers, weekly newspapers, and magazines may be tacitly renewed for a fixed period of no more than three months, provided that the consumer may terminate this renewed agreement at the end of the renewal with a notice period of no more than one month.

An agreement entered into for a definite period and which extends to the regular delivery of products or services may only be tacitly renewed for an indefinite period if the consumer may terminate it at any time with a notice period of no more than one month and a notice period of no more than three months if the agreement extends to the regular but less than monthly delivery of daily newspapers, news papers, weekly newspapers, and magazines.

An agreement of limited duration for the regular introductory delivery of daily newspapers, news papers, weekly newspapers, and magazines (trial or introductory subscription) is not tacitly continued and ends automatically after the trial or introductory period.

Duration

If an agreement has a duration of more than one year, the consumer may terminate the agreement at any time after one year with a notice period of no more than one month, unless reasonableness and fairness oppose termination before the end of the agreed term.

Article 13 – Payment

Unless otherwise agreed, the amounts owed by the consumer must be paid within 7 working days after the cooling-off period referred to in Article 6 paragraph 1 has commenced. In the case of an agreement to provide a service, this period begins after the consumer has received confirmation of the agreement.

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

In the event of non-payment by the consumer, the entrepreneur has, subject to legal limitations, the right to charge the reasonable costs made known to the consumer in advance.

Article 14 – Complaints procedure

The entrepreneur has a sufficiently publicized complaints procedure and handles the complaint in accordance with this complaints procedure.

Complaints about the execution of the agreement must be submitted to the entrepreneur fully and clearly described within 2 months after the consumer has discovered the defects.

Complaints submitted to the entrepreneur shall be answered within 14 days calculated from the date of receipt. If a complaint requires a foreseeably longer processing time, the entrepreneur shall respond within the 14-day period with a notice of receipt and an indication of when the consumer can expect a more detailed response.

If the complaint cannot be resolved by mutual agreement, a dispute arises that is subject to the dispute resolution procedure.

In the case of complaints, a consumer must first contact the entrepreneur. If the webshop is affiliated with Stichting WebwinkelKeur and in the event of complaints that cannot be resolved by mutual agreement, the consumer must turn to Stichting WebwinkelKeur, which will mediate free of charge. Check whether this webshop has a current membership via the members list of WebwinkelKeur. If this still does not lead to a solution, the consumer has the option of having the complaint handled by the independent disputes committee appointed by Stichting WebwinkelKeur. Its decision is binding, and both entrepreneur and consumer agree to this binding decision. Submitting a dispute to this disputes committee involves costs, which must be paid by the consumer to the relevant committee. It is also possible to submit complaints via the European ODR platform.

A complaint does not suspend the entrepreneur’s obligations, unless the entrepreneur indicates otherwise in writing.

If a complaint is found to be justified by the entrepreneur, the entrepreneur shall, at their discretion, either replace or repair the delivered products free of charge.

Article 15 – Disputes

Only Dutch law applies to agreements between the entrepreneur and the consumer to which these general terms and conditions relate, even if the consumer resides abroad.

The Vienna Sales Convention does not apply.

Article 16 – Additional or deviating provisions

Additional provisions or provisions deviating from these general terms and conditions may not be to the detriment of the consumer and must be recorded in writing or in such a way that they can be stored by the consumer in an accessible manner on a durable data carrier.

Customer Service

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