General Terms and Conditions

These terms are also available in Dutch (Nederlands, original) and German (Deutsch).

General Terms and Conditions

Table of contents

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 for purposes relating to his or her trade, business or profession and who enters into a distance contract with the trader;
  • Day: calendar day;
  • Continuing performance contract: a distance contract relating to a series of products and/or services, the delivery and/or purchase obligation of which is spread over time;
  • Durable medium: any means that enables the consumer or the trader 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 consumer’s option to withdraw from the distance contract within the cooling-off period;
  • Model withdrawal form: the model form for withdrawal made available by the trader, which the consumer can complete when he or she wishes to exercise the right of withdrawal;
  • Trader: the natural person or legal entity offering products and/or services to consumers at a distance;
  • Distance contract: a contract concluded within the framework of a distance-selling system organised by the trader, whereby, up to and including the conclusion of the contract, exclusive use is made of one or more means of distance communication;
  • Means of distance communication: a means that can be used to conclude a contract without the consumer and the trader having to be in the same room at the same time;
  • General Terms and Conditions: these General Terms and Conditions of the trader.

Article 2 – Identity of the trader

powergumsma.nl
Turkooisstraat 23
6534 WC Nijmegen
The Netherlands

Phone: +31 6 20246036
Email: [email protected]
Chamber of Commerce (KvK): 81867212
VAT number: NL003613123B52

Article 3 – Applicability

  1. These general terms and conditions apply to every offer made by the trader and to every distance contract and order concluded between the trader and the consumer.
  2. Before the distance contract is concluded, the text of these general terms and conditions will be made available to the consumer. If this is not reasonably possible, the trader will indicate, before the distance contract is concluded, where the general terms and conditions can be inspected at the trader’s premises and that they will be sent free of charge to the consumer as soon as possible on request.
  3. If the distance contract is concluded electronically, then, notwithstanding the previous paragraph and before the distance contract is concluded, the text of these general terms and conditions may be made available to the consumer electronically in such a way that the consumer can easily store it on a durable medium. If this is not reasonably possible, the trader will indicate, before the distance contract is concluded, where the general terms and conditions can be viewed electronically and that they will be sent free of charge, electronically or otherwise, on request.
  4. If, in addition to these general terms and conditions, specific product or service terms also apply, the second and third paragraphs apply accordingly, and in the event of conflicting terms the consumer may always rely on the applicable provision that is most favourable to him or her.
  5. If one or more provisions of these general terms and conditions are at any time wholly or partially void or are annulled, the contract and these terms will otherwise remain in force, and the provision concerned will be replaced without delay, in mutual consultation, by a provision that approximates the purport of the original as closely as possible.
  6. Situations that are not regulated in these general terms and conditions are to be assessed in the spirit of these general terms and conditions.
  7. Any ambiguity about the interpretation or content of one or more provisions of our terms is to be resolved in the spirit of these general terms and conditions.

Article 4 – The offer

  1. If an offer has a limited period of validity or is subject to conditions, this is expressly stated in the offer.
  2. The offer is non-binding. The trader is entitled to change and adjust the offer.
  3. The offer contains a full 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 trader uses images, they are a truthful representation of the products and/or services offered. Obvious mistakes or obvious errors in the offer do not bind the trader.
  4. All images, specifications and data in the offer are indicative; minor deviations due to natural variation in materials and handcraft are possible. This does not affect the consumer’s statutory rights.
  5. The trader cannot guarantee that the colours shown exactly match the actual colours of the products.
  6. Every offer contains such information that it is clear to the consumer what rights and obligations attach to acceptance of the offer. This concerns in particular:
  • the price including taxes;
  • any shipping costs;
  • the way in which the contract will be concluded and which actions are required for this;
  • whether or not the right of withdrawal applies;
  • the method of payment, delivery and performance of the contract;
  • the period for acceptance of the offer, or the period within which the trader guarantees the price;
  • the level of the distance-communication rate, if the costs of using the means of distance communication are calculated on a basis other than the regular basic rate for the means of communication used;
  • whether the contract will be archived after it has been concluded and, if so, how the consumer can consult it;
  • the way in which the consumer, before concluding the contract, can check and, if desired, correct the data provided by him or her in connection with the contract;
  • any other languages in which, besides Dutch, the contract can be concluded;
  • the codes of conduct to which the trader has subjected itself and the way in which the consumer can consult these codes of conduct electronically; and
  • the minimum duration of the distance contract in the case of a continuing performance contract.

Article 5 – The contract

  1. Subject to paragraph 4, the contract is concluded at the moment the consumer accepts the offer and fulfils the conditions set therein.
  2. If the consumer has accepted the offer electronically, the trader will confirm receipt of the acceptance electronically without delay. As long as the trader has not confirmed receipt of this acceptance, the consumer may dissolve the contract.
  3. If the contract is concluded electronically, the trader will take appropriate technical and organisational measures to secure the electronic transfer of data and will ensure a secure web environment. If the consumer can pay electronically, the trader will observe appropriate security measures for this.
  4. Within the legal framework, the trader may investigate whether the consumer is able to meet his or her payment obligations, as well as all facts and factors relevant to responsibly entering into the distance contract. If, on the basis of this investigation, the trader has good grounds not to enter into the contract, the trader is entitled to refuse an order or request with reasons, or to attach special conditions to its performance.
  5. The trader will send the following information with the product or service to the consumer, in writing or in such a way that the consumer can store it in an accessible manner on a durable medium:
  • the visiting address of the trader’s establishment where the consumer can submit complaints;
  • the conditions under which and the manner in which the consumer can exercise the right of withdrawal, or a clear notice that the right of withdrawal is excluded;
  • information about warranties and existing after-sales service;
  • the information referred to in Article 4, paragraph 6 of these terms, unless the trader has already provided this information to the consumer before performance of the contract;
  • the requirements for terminating the contract if the contract has a duration of more than one year or is of indefinite duration.
  1. In the case of a continuing performance contract, the provision in the previous paragraph applies only to the first delivery.
  2. Every contract is entered into subject to the condition precedent that the products concerned are sufficiently available.

Article 6 – Right of withdrawal

On delivery of products:

  1. When purchasing products, the consumer may dissolve the contract without giving reasons during 14 days. This cooling-off period starts on the day after the consumer, or a representative designated in advance by the consumer and made known to the trader, has received the product.
  2. During the cooling-off period the consumer will handle the product and its packaging with care. He or she will unpack or use the product only to the extent necessary to assess whether he or she wishes to keep it. If the consumer exercises the right of withdrawal, he or she will return the product with all accessories supplied and – if reasonably possible – in its original condition and packaging to the trader, in accordance with the reasonable and clear instructions provided by the trader.
  3. If the consumer wishes to exercise the right of withdrawal, he or she must notify the trader within 14 days of receiving the product. The consumer does so by means of the model withdrawal form or by another means of communication such as email. After having notified the trader that he or she wishes to exercise the right of withdrawal, the consumer must return the product within 14 days. The consumer must prove that the goods were returned in time, for example by means of proof of dispatch.
  4. If, after the periods referred to in paragraphs 2 and 3 have expired, the consumer has not notified the trader that he or she wishes to exercise the right of withdrawal or has not returned the product to the trader, the purchase is final.

On delivery of services:

  1. For services, the consumer may dissolve the contract without giving reasons during at least 14 days, starting on the day the contract is concluded.
  2. To exercise the right of withdrawal, the consumer will follow the reasonable and clear instructions provided by the trader with the offer and/or at the latest upon delivery.

Article 7 – Costs in the event of withdrawal

  1. If the consumer exercises the right of withdrawal, he or she bears no more than the costs of returning the goods.
  2. If the consumer has paid an amount, the trader will refund this amount as soon as possible, and no later than 14 days after withdrawal. This is subject to the condition that the product has already been received back by the trader or conclusive proof of complete return can be submitted. The refund will be made using the same payment method as used by the consumer, unless the consumer expressly agrees to another payment method.
  3. If the product is damaged through careless handling by the consumer, the consumer is liable for any diminished value of the product.
  4. The consumer cannot be held liable for any diminished value of the product if the trader has not provided all legally required information about the right of withdrawal before the purchase contract was concluded.

Article 8 – Exclusion of the right of withdrawal

  1. The trader may exclude the consumer’s right of withdrawal for the products described in paragraphs 2 and 3. The exclusion applies only if the trader has clearly stated this in the offer, or at least in good time before the contract is concluded.
  2. Exclusion of the right of withdrawal is possible only for products:
  • that have been made by the trader in accordance with the consumer’s specifications;
  • that are clearly personal in nature;
  • that by their nature cannot be returned;
  • that can spoil or age quickly;
  • whose price is linked to fluctuations in the financial market over which the trader 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.
  1. Exclusion of the right of withdrawal is possible only for services:
  • relating to accommodation, transport, restaurant services or leisure activities to be provided 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;
  • relating to betting and lotteries.

Made-to-order products: products that are put together or made at the consumer’s request according to the consumer’s specifications (such as a different length or design, or a special request outside the standard range), and products that are put together after the order according to the design chosen by the consumer (such as with or without quick link, with or without free-running, or a chosen length), are excluded from the right of withdrawal. This is stated on the product page and before the contract is concluded.

Article 9 – The price

  1. During the period of validity stated in the offer, the prices of the products and/or services offered will not be increased, except for price changes resulting from changes in VAT rates.
  2. Notwithstanding the previous paragraph, the trader may offer products or services whose prices are linked to fluctuations in the financial market and over which the trader has no influence, at variable prices. This link to fluctuations and the fact that any prices stated are target prices are stated in the offer.
  3. Price increases within 3 months after the conclusion of the contract are permitted only if they result from statutory regulations or provisions.
  4. Price increases from 3 months after the conclusion of the contract are permitted only if the trader has stipulated this and:
  • they result from statutory regulations or provisions; or
  • the consumer has the right to terminate the contract with effect from the day on which the price increase takes effect.
  1. The prices stated in the offer of products or services include VAT.
  2. All prices are subject to printing and typing errors. No liability is accepted for the consequences of printing and typing errors. In the event of printing and typing errors, the trader is not obliged to deliver the product at the incorrect price.

Article 10 – Conformity and warranty

  1. The trader warrants that the products and/or services comply with the contract, the specifications stated in the offer, the reasonable requirements of soundness and/or usability, and the statutory provisions and/or government regulations existing on the date the contract was concluded. If agreed, the trader also warrants that the product is suitable for other than normal use.
  2. A warranty provided by the trader, manufacturer or importer does not affect the statutory rights and claims that the consumer can assert against the trader under the contract.
  3. Any defects or incorrectly delivered products must be reported to the trader in writing within 2 months of delivery. Products should be returned, as far as reasonably possible, in their original packaging.
  4. The statutory two-year warranty period applies; any additional warranty does not affect it. However, the trader 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. This does not affect the consumer’s statutory rights.
  5. The warranty does not apply if:
  • the consumer has repaired and/or modified the delivered products himself or herself, or has had them repaired and/or modified by third parties;
  • the delivered products have been exposed to abnormal conditions or otherwise treated carelessly, or treated contrary to the trader’s instructions and/or the instructions on the packaging;
  • the defect is wholly or partly the result of regulations that the government has imposed or will impose regarding the nature or quality of the materials used.

Article 11 – Delivery and performance

  1. The trader will exercise the greatest possible care when receiving and performing orders for products and when assessing requests for services.
  2. The place of delivery is the address that the consumer has made known to the company.
  3. Subject to what is stated in paragraph 4 of this article, the company will execute accepted orders with due speed but at the latest within 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 be executed only in part, the consumer will be notified of this no later than 30 days after having placed the order. In that case the consumer has the right to dissolve the contract without costs. The consumer does not have a right to compensation in that case.
  4. The delivery periods stated are indicative. This does not affect the consumer’s rights if the 30-day period (see paragraph 3) is exceeded, nor his or her statutory right to compensation.
  5. In the event of dissolution in accordance with paragraph 3 of this article, the trader will refund the amount paid by the consumer as soon as possible, and no later than 14 days after dissolution.
  6. If delivery of an ordered product proves impossible, the trader will endeavour to make a replacement article available. At the latest upon delivery, it will be clearly and comprehensibly stated that a replacement article is being delivered. For replacement articles the right of withdrawal cannot be excluded. The costs of any return shipment are borne by the trader.
  7. The risk of damage and/or loss of products rests with the trader until the moment of delivery to the consumer or to a representative designated in advance and made known to the trader, unless expressly agreed otherwise.

Article 12 – Continuing performance contracts: duration, termination and extension

Termination

  1. The consumer may terminate a contract entered into for an indefinite period and which extends to the regular delivery of products (including electricity) or services, at any time, in compliance with the agreed termination rules and a notice period of at most one month.
  2. The consumer may terminate a contract entered into for a fixed period and which extends to the regular delivery of products (including electricity) or services, at any time towards the end of the fixed term, in compliance with the agreed termination rules and a notice period of at most one month.
  3. The consumer may terminate the contracts referred to in the previous paragraphs:
  • at any time and is not limited to termination at a particular time or in a particular period;
  • at least in the same way as they were entered into by him or her;
  • always with the same notice period as the trader has stipulated for itself.

Extension

  1. A contract entered into for a fixed period and which extends to the regular delivery of products (including electricity) or services may not be tacitly extended or renewed for a fixed period.
  2. Notwithstanding the previous paragraph, a contract entered into for a fixed period and which extends to the regular delivery of daily newspapers, weeklies and magazines may be tacitly extended for a fixed period of at most three months, if the consumer can terminate this extended contract towards the end of the extension with a notice period of at most one month.
  3. A contract entered into for a fixed period and which extends to the regular delivery of products or services may be tacitly extended for an indefinite period only if the consumer may terminate at any time with a notice period of at most one month, and a notice period of at most three months if the contract extends to the regular, but less than once-a-month, delivery of daily newspapers, weeklies and magazines.
  4. A contract of limited duration for the regular delivery of daily newspapers, weeklies and magazines on a trial or introductory basis (trial or introductory subscription) is not tacitly continued and ends automatically at the end of the trial or introductory period.

Duration

  1. If a contract has a duration of more than one year, the consumer may terminate the contract at any time after one year with a notice period of at most one month, unless reasonableness and fairness oppose termination before the end of the agreed duration.

Article 13 – Payment

  1. Unless agreed otherwise, the amounts owed by the consumer must be paid within 7 working days after the start of the cooling-off period referred to in Article 6, paragraph 1. In the case of a contract for the provision of a service, this period starts after the consumer has received confirmation of the contract.
  2. The consumer has a duty to report inaccuracies in payment details provided or stated to the trader without delay.
  3. If the consumer defaults on payment, the trader is, subject to statutory limitations, entitled to charge the reasonable costs that were made known to the consumer in advance.

Article 14 – Complaints procedure

  1. The trader has a sufficiently publicised complaints procedure and will handle the complaint in accordance with this complaints procedure.
  2. Complaints about the performance of the contract must be submitted to the trader, fully and clearly described, within 2 months after the consumer has discovered the defects.
  3. Complaints submitted to the trader will be answered within 14 days of the date of receipt. If a complaint is foreseeably going to require a longer processing time, the trader will respond within 14 days with a confirmation of receipt and an indication of when the consumer can expect a more detailed answer.
  4. If the complaint cannot be resolved by mutual agreement, a dispute arises.
  5. With complaints, a consumer should first contact the trader. We are not affiliated with a dispute committee. If the complaint cannot be resolved by mutual agreement, the consumer may submit the dispute to the competent court.
  6. A complaint does not suspend the trader’s obligations, unless the trader indicates otherwise in writing.
  7. If the trader finds a complaint justified, the trader will, at its option, either replace or repair the delivered products free of charge.

Article 15 – Disputes

  1. Contracts between the trader and the consumer to which these general terms and conditions relate are governed exclusively by Dutch law. A consumer who lives in another country retains the protection of the mandatory provisions of the law of the country in which he or she has his or her habitual residence.
  2. The Vienna Sales Convention (CISG) does not apply.

Article 16 – Additional or deviating provisions

  1. 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 the consumer can store them in an accessible manner on a durable medium.