General terms and conditions

Terms and Conditions - Novus Fumus

Table of Contents:

• Article 1 - Definitions
• Article 2 - Identity of the Entrepreneur
• Article 3 - Applicability
• Article 4 - The Offer
• Article 5 - The Contract
• Article 6 - Right of Withdrawal
• Article 7 - Obligations of the Consumer During the Cooling-off Period
• Article 8 - Exercise of the Right of Withdrawal by the Consumer and Costs
• Article 9 - Obligations of the Entrepreneur in Case of Withdrawal
• Article 10 - Exclusion of the Right of Withdrawal
• Article 11 - The Price
• Article 12 - Fulfillment and Additional Warranty
• Article 13 - Delivery and Execution
• Article 14 - Duration Transactions: Duration, Termination, and Extension
• Article 15 - Payment
• Article 16 - Complaint Procedure
• Article 17 - Disputes
• Article 18 - Additional or Deviating Provisions

Article 1 - Definitions

In these terms and conditions, the following definitions apply:

• Additional Agreement: An agreement whereby the consumer acquires products, digital content, and/or services related to a distance contract, and these items, digital content, and/or services are provided by the entrepreneur or a third party based on an agreement between the third party and the entrepreneur.
• Cooling-off Period: The period within which the consumer can exercise their right of withdrawal.
• Consumer: The natural person who does not act for purposes related to their trade, business, craft, or profession.
• Day: Calendar day.
• Digital Content: Data produced and delivered in digital form.
• Continuous Contract: A contract that involves the regular delivery of goods, services, and/or digital content over a certain period.
• Durable Medium: Any tool – including email – that enables the consumer or entrepreneur to store information addressed to them personally in a way that allows future consultation or use for a period that is tailored to the purpose for which the information is intended and allows unchanged reproduction of the stored information.
• Right of Withdrawal: The consumer’s ability to withdraw from the distance contract within the cooling-off period.
• Entrepreneur: The natural or legal person who offers products, (access to) digital content, and/or services to consumers at a distance.
• Distance Contract: A contract concluded between the entrepreneur and the consumer within the framework of an organized system for distance selling of products, digital content, and/or services, whereby exclusive or partial use is made of one or more means of distance communication up to and including the conclusion of the contract.
• Model Withdrawal Form: The European model withdrawal form included in Annex I of these terms and conditions. Annex I does not need to be provided if the consumer has no right of withdrawal regarding their order.
• Means of Distance Communication: A method that can be used to conclude a contract, without the consumer and entrepreneur being in the same room simultaneously.

Article 2 - Identity of the Entrepreneur

Novus Fumus / Novus Internet Shopping (statutory name, possibly supplemented by trade names);

Hoogstraat 56
5931 GD Tegelen

Visiting Address:
Mariastraat 22
5953 NL Reuver

Phone Number: 085-8886846
Email Address: [email protected]
Chamber of Commerce Number: 62892231
VAT Identification Number: NL855001331B01

Article 3 - Applicability

• These general terms and conditions apply to every offer from the entrepreneur and to every distance contract concluded between the entrepreneur and the consumer.
• 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 entrepreneur will indicate, before the distance contract is concluded, how the general terms and conditions can be inspected at the entrepreneur’s premises and that they will be sent free of charge as soon as possible at the consumer's request.
• If the distance contract is concluded electronically, the text of these general terms and conditions can be made available electronically to the consumer in deviation from the previous paragraph, in such a way that it can be easily stored by the consumer on a durable medium. If this is not reasonably possible, it will be indicated where the general terms and conditions can be accessed electronically before the distance contract is concluded and that they will be sent electronically or otherwise free of charge at the consumer's request.
• In cases where specific product or service terms also apply in addition to these general terms and conditions, the second and third paragraphs apply, and the consumer can always invoke the most favorable applicable provision in the event of conflicting conditions.

Article 4 - The Offer

• If an offer is subject to a limited period or conditions, this will be explicitly stated in the offer.
• The offer includes a complete and accurate description of the offered products, digital content, and/or services. The description is sufficiently detailed to allow the consumer to make a proper assessment of the offer. If the entrepreneur uses images, these will be a truthful representation of the offered products, services, and/or digital content. Obvious mistakes or errors in the offer are not binding for the entrepreneur.
• Every offer contains such information that it is clear to the consumer what rights and obligations are associated with the acceptance of the offer.

Article 5 - The Contract

• The contract is concluded, subject to the provisions in paragraph 4, at the moment the consumer accepts the offer and meets the associated conditions.
• If the consumer has accepted the offer electronically, the entrepreneur will immediately confirm the receipt of the acceptance of the offer electronically. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer can dissolve the contract.
• If the contract is concluded electronically, the entrepreneur will take appropriate technical and organizational measures to secure the electronic data transfer and ensure a secure web environment. If the consumer can pay electronically, the entrepreneur will take appropriate security measures.
• The entrepreneur can – within the legal framework – inquire whether the consumer can meet their payment obligations, as well as all facts and factors that are important for a responsible conclusion of the distance contract. If the entrepreneur has good reasons not to conclude the contract based on this investigation, he is entitled to refuse an order or request, stating reasons, or to attach special conditions to the execution.
• The entrepreneur will provide the consumer with the following information, in writing or in such a way that it can be stored by the consumer in an accessible manner on a durable medium, at the latest upon delivery of the product, service, or digital content:
  • The visiting address of the entrepreneur’s business 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 statement regarding the exclusion of the right of withdrawal;
  • Information on guarantees and existing after-sales service;
  • The price, including all taxes, of the product, service, or digital content; where applicable, the costs of delivery; and the method of payment, delivery, or execution of the distance contract;
  • The requirements for terminating the contract if the contract has a duration of more than one year or is indefinite;
  • If the consumer has a right of withdrawal, the model withdrawal form.
• In the case of a continuous transaction, the provision in the previous paragraph only applies to the first delivery.

Article 6 - Right of Withdrawal

For Products:

• The consumer can dissolve a contract concerning the purchase of a product during a cooling-off period of at least 14 days without giving reasons. The entrepreneur may ask the consumer for the reason for withdrawal but cannot oblige them to state their reason(s).
• The cooling-off period mentioned in paragraph 1 starts on the day after the consumer, or a third party designated by the consumer who is not the carrier, has received the product, or:
  • If the consumer has ordered several products in the same order: the day on which the consumer or a third party designated by them receives the last product. The entrepreneur may, provided they have clearly informed the consumer prior to the ordering process, refuse an order for several products with different delivery times.
  • If the delivery of a product consists of several shipments or parts: the day on which the consumer or a third party designated by them receives the last shipment or part;
  • For contracts for the regular delivery of products over a specified period: the day on which the consumer or a third party designated by them receives the first product.

For Services and Digital Content Not Delivered on a Tangible Medium:

• The consumer can dissolve a service contract and a contract for the delivery of digital content not delivered on a tangible medium within at least 14 days without giving reasons. The entrepreneur may ask the consumer for the reason for withdrawal but cannot oblige them to state their reason(s).
• The cooling-off period mentioned in paragraph 3 starts on the day following the conclusion of the contract.

Extended Cooling-off Period for Products, Services, and Digital Content Not Delivered on a Tangible Medium in Case of Lack of Information on the Right of Withdrawal:

• If the entrepreneur has not provided the consumer with the legally required information on the right of withdrawal or the model withdrawal form, the cooling-off period expires twelve months after the end of the original cooling-off period determined in accordance with the previous paragraphs of this article.
• If the entrepreneur has provided the information referred to in the previous paragraph to the consumer 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 that information.

Article 7 - Obligations of the Consumer During the Cooling-off Period

• During the cooling-off period, the consumer will handle the product and packaging with care. They will only unpack or use the product to the extent necessary to determine the nature, characteristics, and functioning of the product. The basic principle here is that the consumer may only handle and inspect the product as they would be allowed to do in a store.
• The consumer is only liable for the depreciation of the product resulting from handling the product in a way that goes beyond what is allowed in paragraph 1.
• The consumer is not liable for the depreciation of the product if the entrepreneur has not provided them 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

• If the consumer exercises their right of withdrawal, they will notify the entrepreneur within the cooling-off period by means of the model withdrawal form or in another unequivocal manner.
• As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the consumer returns the product or hands it over to (an authorized representative of) the entrepreneur. This is not required if the entrepreneur has offered to collect the product themselves. The consumer has observed the return period in any case if they return the product before the cooling-off period has expired.
• The consumer returns the product with all delivered accessories, if reasonably possible, in the original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.
• The risk and burden of proof for the correct and timely exercise of the right of withdrawal lie with the consumer.
• The consumer bears the direct costs of returning the product. If the entrepreneur has not stated that the consumer must bear these costs or if the entrepreneur indicates that they will bear the costs themselves, the consumer does not have to bear the costs for returning the product.
• If the consumer withdraws after first having expressly requested that the performance of the service or the supply of gas, water, or electricity that is not ready for sale in a limited volume or quantity commence during the cooling-off period, the consumer owes the entrepreneur an amount proportional to that part of the obligation that has been fulfilled by the entrepreneur at the time of withdrawal, compared to the full performance of the obligation.
• The consumer does not bear any costs for the performance of services or the supply of water, gas, or electricity that is not ready for sale in a limited volume or quantity, or for the supply of district heating, if:
  • The entrepreneur has not provided the consumer with the legally required information about the right of withdrawal, the cost reimbursement upon withdrawal, or the model withdrawal form, or;
  • 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.
• The consumer does not bear any costs for the full or partial delivery of digital content not delivered on a tangible medium if:
  • They have not expressly agreed to commence the performance of the contract before the end of the cooling-off period prior to delivery;
  • They have not acknowledged losing their right of withdrawal when giving their consent; or
  • The entrepreneur has failed to confirm this statement by the consumer.
• If the consumer exercises their right of withdrawal, all additional agreements are dissolved by operation of law.

Article 9 - Obligations of the Entrepreneur in Case of Withdrawal

• If the entrepreneur makes the notification of withdrawal by the consumer possible electronically, they will immediately send an acknowledgment of receipt after receiving this notification.
• The entrepreneur reimburses 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 them of the withdrawal. Unless the entrepreneur offers to collect the product themselves, they may wait with the refund until they have received the product or until the consumer proves that they have returned the product, whichever comes first.
• The entrepreneur uses the same payment method that the consumer used for reimbursement unless the consumer agrees to another method. The refund is free of charge for the consumer.
• 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 the Right of Withdrawal

The entrepreneur can exclude the following products and services from the right of withdrawal, but only if the entrepreneur has clearly stated this in the offer or at least in time for the conclusion of the contract:

• Products or services whose price depends on fluctuations in the financial market that the entrepreneur has no influence on and which may occur within the withdrawal period;
• Contracts concluded during a public auction. A public auction is understood to mean a sales method in which products, digital content, and/or services are offered by the entrepreneur to the consumer who is personally present or has the opportunity to be personally present 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;
• Service contracts after full performance of the service, but only if:
  • The performance has begun with the consumer’s express prior consent; and
  • The consumer has declared that they lose their right of withdrawal once the entrepreneur has fully performed the contract;
• Package holidays as referred to in Article 7:500 BW and contracts for passenger transport;
• 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, goods transport, car rental services, and catering;
• Contracts relating to leisure activities, if the contract provides for a specific date or period of performance;
• Products made to the consumer’s specifications that are not prefabricated and are made based on an individual choice or decision of the consumer, or that are clearly intended for a specific person;
• Products that spoil quickly or have a limited shelf life;
• Sealed products that are not suitable for return for health protection or hygiene reasons and whose seal has been broken after delivery;
• Products that, after delivery, are irrevocably mixed with other products due to their nature;
• Alcoholic beverages, the price of which was agreed upon at the conclusion of the contract, but whose delivery can only take place after 30 days, and whose actual value depends on fluctuations in the market that the entrepreneur has no influence on;
• Sealed audio, video recordings, and computer software whose seal has been broken after delivery;
• Newspapers, periodicals, or magazines, with the exception of subscriptions to them;
• The delivery of digital content other than on a tangible medium, but only if:
  • The performance has begun with the consumer’s express prior consent; and
  • The consumer has declared that they thereby lose their right of withdrawal.

Article 11 - The Price

• During the period mentioned in the offer, the prices of the offered products and/or services will not be increased, except for price changes resulting from changes in VAT rates.
• Contrary to the previous paragraph, the entrepreneur can 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 mentioned are target prices will be mentioned in the offer.
• Price increases within 3 months after the conclusion of the contract are only permitted if they result from statutory regulations or provisions.
• Price increases from 3 months after the conclusion of the contract are only permitted if the entrepreneur has stipulated this and:
  • They are the result of statutory regulations or provisions; or
  • The consumer has the authority to terminate the contract from the day on which the price increase takes effect.
• The prices stated in the offer of products or services include VAT.

Article 12 - Fulfillment and Additional Warranty

• The entrepreneur guarantees that the products and/or services comply with the contract, the specifications stated in the offer, the reasonable requirements of reliability and/or usability, and the legal provisions and/or government regulations existing on the date of the conclusion of the contract. If agreed, the entrepreneur also guarantees that the product is suitable for other than normal use.
• A guarantee provided by the entrepreneur, manufacturer, or importer does not limit the legal rights and claims that the consumer can assert against the entrepreneur under the contract if the entrepreneur has failed to fulfill their part of the contract.
• An additional warranty is understood to mean any obligation of the entrepreneur, manufacturer, or importer in which they grant the consumer certain rights or claims that go beyond what is legally required in case they have failed to fulfill their part of the contract.

Article 13 - Delivery and Execution

• The entrepreneur will take the greatest possible care when receiving and executing orders for products and when assessing applications for the provision of services.
• The place of delivery is the address that the consumer has provided to the entrepreneur.
• Subject to the provisions of Article 4 of these general terms and conditions, the entrepreneur will execute accepted orders with due speed but at the latest within 30 days unless another delivery period has been agreed upon. If the delivery is delayed or if an order cannot or can only partially be executed, the consumer will be informed of this no later than 30 days after placing the order. In that case, the consumer has the right to terminate the contract without costs and is entitled to any compensation.
• After termination in accordance with the previous paragraph, the entrepreneur will immediately refund the amount paid by the consumer.
• The risk of damage and/or loss of products lies with the entrepreneur until the moment of delivery to the consumer or a pre-designated and announced representative, unless expressly agreed otherwise.

Article 14 - Duration Transactions: Duration, Termination, and Extension

Termination:

• The consumer can terminate a contract concluded for an indefinite period that provides for the regular delivery of products (including electricity) or services at any time with due observance of the agreed termination rules and a notice period of no more than one month.
• The consumer can terminate a contract concluded for a definite period that provides for the regular delivery of products (including electricity) or services at any time at the end of the definite period with due observance of the agreed termination rules and a notice period of no more than one month.
• The consumer can terminate the contracts mentioned in the previous paragraphs:
  • At any time and not be limited to termination at a specific time or in a specific period;
  • At least in the same way as they were concluded by him;
  • Always terminate with the same notice period as the entrepreneur has stipulated for himself.

Extension:

• A contract concluded for a definite period that provides for the regular delivery of products (including electricity) or services may not be tacitly extended or renewed for a definite period.
• Contrary to the previous paragraph, a contract concluded for a definite period that provides for the regular delivery of daily, news, and weekly newspapers and magazines may be tacitly extended for a definite period of up to three months, if the consumer can terminate this extended contract at the end of the extension with a notice period of no more than one month.
• A contract concluded for a definite period that provides for the regular delivery of products or services may only be tacitly extended for an indefinite period if the consumer can terminate it at any time with a notice period of no more than one month. The notice period is no more than three months in case the contract provides for the regular, but less than once a month, delivery of daily, news, and weekly newspapers and magazines.
• A limited-term contract for the regular delivery of daily, news, and weekly newspapers and magazines (trial or introductory subscription) will not be tacitly continued and ends automatically after the trial or introductory period.

Duration:

• If a contract has a duration of more than one year, the consumer can terminate the contract 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 duration.

Article 15 - Payment

• Unless otherwise provided in the contract or additional conditions, the amounts owed by the consumer must be paid within 14 days after the start of the cooling-off period, or in the absence of a cooling-off period within 14 days after the conclusion of the contract. In the case of a service contract, this term begins the day after the consumer has received the confirmation of the contract.
• When selling products to consumers, the consumer can never be obliged in general terms and conditions to make an advance payment of more than 50%. When an advance payment is stipulated, the consumer cannot assert any rights regarding the execution of the relevant order or service(s) before the stipulated advance payment has been made.
• The consumer has the duty to immediately report inaccuracies in the provided or stated payment details to the entrepreneur.
• If the consumer does not meet their payment obligation(s) on time, they are, after being notified by the entrepreneur of the late payment and after the entrepreneur has given the consumer a period of 14 days to still meet their payment obligations, after the failure to pay within this 14-day period, the statutory interest on the amount still owed and the entrepreneur is entitled to charge the extrajudicial collection costs incurred by him. These collection costs amount to a maximum of: 15% on outstanding amounts up to € 2,500,=; 10% on the following € 2,500,= and 5% on the next € 5,000,= with a minimum of € 40,=. The entrepreneur can deviate from the stated amounts and percentages for the benefit of the consumer.

Article 16 - Complaint Procedure

• The entrepreneur has a sufficiently publicized complaint procedure and handles the complaint in accordance with this complaint procedure.
• Complaints about the execution of the contract must be submitted to the entrepreneur fully and clearly described within a reasonable period after the consumer has discovered the defects.
• Complaints submitted to the entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeably longer processing time, the entrepreneur will respond within the 14-day period with an acknowledgment of receipt and an indication when the consumer can expect a more detailed answer.
• The consumer must give the entrepreneur at least 4 weeks to resolve the complaint in mutual consultation. After this period, a dispute arises that is subject to the dispute resolution.

Article 17 - Disputes

• Contracts between the entrepreneur and the consumer to which these general terms and conditions apply are exclusively governed by Dutch law.

Article 18 - Additional or Deviating Provisions

• Additional or deviating provisions 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 medium.

Annex I: Model Withdrawal Form

Model Withdrawal Form

(Complete and return this form only if you wish to withdraw from the contract)

To: [Name of the Entrepreneur]
[Geographical address of the Entrepreneur]
[Fax number of the Entrepreneur, if available]
[Email address or electronic address of the Entrepreneur]

I/We* hereby inform you that I/We* withdraw from our contract of sale of the following products: [indication of the product], the delivery of the following digital content: [indication of digital content], the provision of the following service: [indication of service]*,

Ordered on*/received on* [date of order for services or date of receipt for products]

[Name of consumer(s)]
[Address of consumer(s)]
[Signature of consumer(s)] (only if this form is notified on paper)
[Date]

(* Delete as appropriate or fill in as applicable.)