Template General Terms and Conditions Mervay
Definition and Scope
1.1 In the Terms and Conditions, the following terms shall have the following meanings:
Offer: the products offered by the Intermediary HONG KONG NAISHI SUPPLY CHAIN CO;
Intermediary: ... ;
Order: the product ordered by the buyer for which a contract has been concluded;
cooling-off period: the period within which the consumer may exercise his right of withdrawal;
Consumer: the natural person, not acting in a business capacity or on behalf of a business, who enters into a distance contract with an intermediary;
Dropshipping: the buyer places an order via the website, giving the intermediary the mandate and authority to enter into an agreement for one or more products between the buyer and the supplier as an intermediary and thus not at the expense and risk of the intermediary, where payment is made under the agreement via the intermediary and the supplier delivers the product directly to the buyer;
Form: the withdrawal form provided by the Supplier for a Consumer to complete if he wishes to exercise his right of withdrawal, as set out in the Annex to the Conditions;
Right of withdrawal: the possibility for the consumer to withdraw from the contract within the cooling-off period;
Buyer: the person with whom a contract is concluded on behalf of the supplier;
Supplier: the supplier of a product;
Agreement: an agreement to be concluded or entered into between the buyer and the supplier through an intermediary for the purchase of products, where only one or more means of distance communication are used to conclude the agreement;
Product: a good offered by the Supplier through the Website by means of dropshipping;
Written: any digital communication by means of signs that can be stored on a durable medium and of which the intermediary can determine the method to be used;
General Terms and Conditions: The general terms and conditions are determined by Mervay. acting as intermediary.
1.2 The Terms and Conditions apply to every offer made by an Intermediary, every order and every agreement, including additions or amendments thereto, as well as to subsequent agreements.
1.3 The scope of general or (purchase) conditions of the buyer of the intermediary is expressly rejected.
1.4 Articles 11.5, 11.6, 12, 13 and 14 of the General Terms and Conditions apply only to consumers.
1.5 If one or more provisions of the Conditions are at any time wholly or partly void, the Agreement and these Conditions shall otherwise remain in force and the provision in question shall be replaced without delay by a provision which, by mutual agreement, comes as close as possible to the meaning and purpose of the original provision.
3.1 Any offer made by an Intermediary shall have a limited period of validity, i.e. until such time as a Product is no longer available in stock or from the Supplier ("expire") or can no longer be ordered via the Website.
3.2 If an offer is made subject to certain conditions, this will be explicitly mentioned in the offer.
3.3 Every offer is non-binding. The intermediary is entitled to change the offer at any time.
3.4 Each offer contains a complete and as accurate as possible description of the products in order to enable a correct assessment by the buyer. Pictures of products are a faithful representation of a product. The intermediary cannot guarantee that the colours shown are exactly the same as the real colours of a product. When placing an order, the Buyer could assess the Product, the image and the description of the Product in light of the foregoing.
3.5 All images and descriptions of a Product are indicative and cannot be grounds for compensation or termination of the Contract in the event of inaccuracies and/or discrepancies, unless they are deviations from the essential features of the Product to such an extent that it is in fact a different Product from the one the Buyer intended to order.
3.6 Any quotation which the Buyer could reasonably have expected or should have understood to contain an obvious clerical error or to constitute an obvious mistake need not be complied with by the Intermediary. The Buyer shall not derive any rights from any such error or mistake.
4.1 Subject to the provisions of clause 4.5, an agreement shall come into existence at the time of acceptance of the offer and the placing of the order by the Buyer, subject to the terms and conditions set out.
4.2 The agreement is concluded in Dutch, unless the intermediary offers the terms and conditions and further communication in another language via the website. In the latter case, an agreement may also be concluded in a language of the buyer's choice and the buyer may also communicate with the intermediary in that language.
4.3 If the buyer accepts the offer electronically, the intermediary shall immediately confirm receipt of the acceptance electronically, which concludes the contract. As long as the receipt of the acceptance has not been confirmed by the intermediary, the buyer may dissolve the contract.
4.4 The intermediary shall take appropriate technical and organisational measures to secure the electronic transmission of data and shall provide a secure environment. The intermediary will take appropriate security measures when the buyer is able to pay electronically.
4.5 The intermediary may obtain information on whether the buyer is able to meet his payment obligations and on anything that may be relevant to the responsible conclusion of the contract. If the intermediary has good reasons for not concluding the contract, he is entitled to refuse acceptance or the order or to attach special conditions to the execution.
4.6 The buyer shall ensure that all information that the intermediary indicates as necessary or that the buyer should reasonably understand is necessary for the execution of the contract is provided to the intermediary in a timely manner. If such information is not provided to the Intermediary in a timely manner, the Intermediary shall have the right to suspend performance of the Contract and/or charge the Buyer for any additional costs incurred as a result of the delay at the Intermediary's normal rates.
4.7 The Intermediary shall not be liable for any damages of any kind arising from the Intermediary's reliance on incorrect and/or incomplete information provided by the Buyer, unless such incorrectness or incompleteness was known to the Intermediary.
5.1 The prices quoted in the offer are based on the cost factors applicable at the time of the conclusion of the contract, such as: Import and export duties, freight and unloading costs, insurance and any duties and taxes. Any advantageous or disadvantageous differences at the time of arrival, departure or delivery shall be for the benefit or account of the Buyer.
5.2 Quoted prices are subject to printing and typographical errors. No liability is accepted for the consequences of printing and typing errors. In the event of printing and spelling errors, the intermediary is not obliged to deliver the product at the wrong price.
5.3 A composite quotation does not oblige the intermediary to supply part of the goods included in the quotation or estimate at a corresponding part of the stated price.
Conformity and warranty
6.1 Subject to the information in the Terms and Conditions in this regard, the Goods shall conform to the Contract, to the specifications set out in the quotation, to reasonable requirements of reliability and/or fitness for purpose and to the statutory requirements and regulations existing on the date of the Contract.
6.2 The Intermediary draws attention to the fact that certain Products have a limited best-before date, which is indicated on the relevant Product. The Buyer must take this shelf life into account in order to ensure the quality and safety of the Product in accordance with the Supplier's warranty.
6.3 Any defects or incorrectly delivered Products must be reported in writing to the Intermediary within four (4) weeks of delivery. The products must be returned in their original packaging and in unused condition.
6.4 The intermediary's warranty period is the same as the manufacturer's warranty period. However, the intermediary is never responsible for the ultimate suitability of the products for individual use by the buyer, nor for any advice regarding the use or application of the products.
6.5 In the event of a warranty claim, the Intermediary will, at its option, provide replacement or repair. In the event of replacement, the buyer undertakes to return the replaced item to the intermediary.
6.6 The warranty does not apply if:
the buyer has repaired and/or worked on the delivered products himself or has had them repaired and/or worked on by a third party;
the products supplied have been subjected to abnormal conditions or have otherwise been handled negligently or contrary to the instructions of the intermediary and/or have been handled on the packaging.
the defect is wholly or partly due to regulations which the government has issued or will issue with regard to the type or quality of materials used.
Delivery and performance
7.1 The Intermediary will handle orders for Products with the utmost care.
7.2 The place of delivery will be the address given by the Buyer to the Intermediary when placing the order.
7.3 The intermediary will forward accepted orders expeditiously and have them executed.
7.4 All delivery times are indicative. In the case of deliveries of products from a country other than the Netherlands, delivery times may be longer than those indicated on the website. This period depends on the delivery time of the supplier. The Buyer cannot derive any rights from any of the aforementioned time periods.
7.5 If an order cannot be executed or can only be executed in part, the buyer will be informed of this within 30 days of the order.
7.6 The intermediary is entitled to deliver the goods in parts, unless this deviates from the agreement or the partial delivery has no independent value. The intermediary is entitled to invoice the goods delivered in this way separately. Exceeding a deadline does not entitle the buyer to compensation.
7.7 The delivery times stated on the website are only indicative.
7.8 If the stated delivery time is exceeded, the buyer has no right to dissolution of the agreement or compensation, unless expressly agreed otherwise.
7.9 In the event of dissolution in accordance with the provisions of paragraph 3 of this article, the intermediary will refund the amount paid by the buyer as soon as possible, but no later than within 14 days of dissolution.
7.10 If it proves impossible to deliver a product ordered, the intermediary will make every effort to provide a replacement item. A clear and comprehensible notice will be given at the latest upon delivery that a replacement item will be supplied. In the case of replacement items, the right of withdrawal cannot be excluded. The costs of a return shipment shall be borne by the agent.
7.11 The risk of damage and/or loss of products shall remain with the intermediary until the time of delivery to the buyer or an agent appointed in advance and made known to the intermediary, unless expressly agreed otherwise. Acceptance of goods without remarks on the consignment note/invoice shall be deemed to be proof that the packaging was in good condition at the time of delivery.
8.1 Unless otherwise agreed, the amounts owed by the Buyer under the Agreement must be paid immediately after the order is placed.
8.2 The Buyer shall immediately report any inaccuracies in the payment details provided to the Intermediary.
8.3 If the buyer does not fulfil his payment obligation(s) on time, he will owe the statutory interest on the amount still owed, and if the buyer is not a consumer, he will owe the statutory commercial interest, and the intermediary will be entitled to charge the extrajudicial collection costs incurred by or on behalf of the agent. The collection costs are calculated in accordance with the Act and the Regulation on Compensation for Extrajudicial Collection Costs.
Provisions regarding the website and products
9.1 The Intermediary is not responsible for errors and/or irregularities in the functionality of the Website. The Intermediary shall not be liable for any malfunction or unavailability of the Website for any reason whatsoever.
9.2 The Intermediary does not guarantee the correct and complete transmission of the content of e-mails or other digital communications sent by/on behalf of the Intermediary, nor their timely receipt.
9.3 Any claims by the buyer based on defects on the part of the intermediary shall be forfeited if not notified in writing to the intermediary within one (1) year after the buyer knew or could reasonably have known of the defects on which it based its claims.
9.4 The intermediary expressly disclaims all liability and claims from buyers and third parties who have suffered (physical) damage due to careless, incorrect or unnecessary use of the products. The products may only be used in accordance with the instructions for use.
9.5 The agent recommends that the buyer always read the operating instructions before use and act accordingly. Products must be stored and used in accordance with the instructions for use.
9.6 All advice on the use of products is of a general and non-binding nature. The buyer must judge for himself and on his own responsibility whether a product is suitable for him. In case of doubt about the use of a product, the supplier or the buyer's (family) doctor should be contacted to obtain an assessment for use in a specific case.
9.7 Certain products, such as products containing small parts, external care products and electrical appliances, should be kept out of the reach of young children.
9.8 The Intermediary advises the Buyer at all times, but particularly in the case of pregnancy, breastfeeding, taking medication and, in case of doubt, hypersensitivity to any of the ingredients, to consult an expert if necessary after reading the instructions for use before using products such as cosmetic care products.
10.1 The agent is not liable to the buyer if, as a result of force majeure, obligations under the contract cannot be fulfilled. Force majeure shall in any case be understood to mean:
Force majeure on the part of the supplier;
government measures and restrictions;
Disruption of the internet, data network and telecommunication facilities, e.g. due to cybercrime and hacking;
war and terrorist attacks;
general transport problems and restrictions;
supplier or agent strikes; and
other situations beyond the control of the Intermediary which temporarily or permanently prevent compliance with the Obligations.
10.2 During the period in which the force majeure lasts, the obligations under the agreement shall be suspended. If this period lasts longer than two months, either party shall be entitled to terminate the agreement without any obligation to compensate the other party or the intermediary.
10.3 Insofar as the Contractor has already partially fulfilled its obligations under the Agreement or can fulfil them at the time of force majeure and the part fulfilled or to be fulfilled has an independent value, the Contractor shall be entitled to invoice separately the part already fulfilled or to be fulfilled. The buyer shall be obliged to pay this invoice as if it were a separate agreement.
11.1 The (personal) data of the Buyer will be entered into a database. This data is primarily used for the execution of the agreement. Upon request, the intermediary may send information about its products, such as newsletters and offers, to the buyer. The Buyer may at any time object to the use of personal data for direct marketing purposes and/or the (further) receipt of (certain) marketing information by sending an objection to the Intermediary.
11.2 The Buyer consents to the use of electronic means of communication. The Buyer acknowledges that despite all reasonable security measures taken by the Intermediary, electronic communications are not secure and may be intercepted, tampered with, infected, delayed or misdirected, including by viruses and spam filters. Nor can an intermediary provide absolute security against consultation by unauthorised persons.
11.3 The intermediary shall take appropriate measures to ensure the confidentiality and secure storage of (personal) data.
11.4 In the context of the performance of the contract, (personal) data may also be transferred to countries outside the European Union, e.g. to a supplier in China, as otherwise the contract between the buyer and the supplier cannot be executed and the delivery of the order to the buyer by the supplier cannot take place. However, the intermediary will provide contractual guarantees in this regard.
11.5 The Buyer, who is a consumer, has the right to request the Agent in writing to grant access to and/or (if applicable) correct, amend, remove or block the personal data processed by the Agent. A request for access and/or correction must be addressed to the management of the intermediary. Upon the first request of the Buyer, the registered Personal Data will be made available, corrected or removed.
11.6 The personal data of the buyer, who is a consumer, will not be disclosed to third parties unless the intermediary is required to do so by or under applicable laws and regulations or it is necessary for the performance of the contract.
12.1 For consumers, prices are quoted inclusive of VAT, taxes and delivery charges.
12.2 Before a contract is concluded with a consumer, the text of the terms and conditions will be made available (electronically) to the consumer in such a way that the consumer can easily store it on another durable medium. Where this is not reasonably possible, it will be stated before the contract is concluded where and how the terms can be viewed electronically and that the terms can be sent electronically or otherwise free of charge at the consumer's request.
12.3 For the benefit of the consumer, the intermediary will make the following information available via the website or at least ensure that this information can be stored in an accessible way on a durable medium:
the conditions under which and the manner in which the consumer may lodge a complaint;
the conditions under which and the manner in which the consumer may exercise his right of withdrawal, or a clear statement that he is excluded from the right of withdrawal;
the information about the guarantee and after-sales service; and
12.4 To exercise any statutory rights the consumer has against the supplier, the consumer may use an intermediary, provided this is in accordance with the terms and conditions.
12.5 Any warranty given by or on behalf of the intermediary or supplier does not affect the consumer's statutory rights under the contract against the intermediary.
12.6 In the event that Article 7.5 applies, the Buyer who is a Consumer shall have the right to dissolve the Contract free of charge in respect of Products that are not deliverable or are not deliverable within a reasonable time.
12.7 The Authorised Representative may derogate from Article 8.3 in respect of the collection costs to be charged to the Consumer.
Right of withdrawal
13.1 When purchasing products, the buyer who is a consumer has the option to dissolve the agreement without giving any reason for a period of 14 days. This cooling-off period starts on the day following receipt of the Product by the Consumer or a representative previously appointed by the Consumer and notified to the Intermediary.
13.2 During the cooling-off period, the consumer must handle the product and its packaging with care. He will unpack or use the product only to the extent necessary to assess whether he wants to keep the product. If he exercises his right of withdrawal, the consumer will return the product to the intermediary with all the accessories supplied and, if reasonably possible, in its original condition and packaging, in accordance with the intermediary's reasonable instructions.
13.3 If the consumer wishes to exercise his right of withdrawal, he must notify the intermediary within 14 days of receipt of the product using the form. After the consumer has made it known that he wishes to exercise his right of withdrawal, he must return the product to the intermediary or supplier within 14 days. In doing so, the consumer must prove that the delivered products were returned in due time.
13.4 If, after the expiry of the periods referred to in Articles 13.2 and 13.3, the consumer has not notified the intermediary that he wishes to exercise his right of withdrawal or has not returned the product to the intermediary, the purchase is a fact.
13.5 The following products are excluded from the right of withdrawal:
a) Products that are clearly personal in nature;
b) Products that cannot be returned due to their nature;
c) Products that can spoil or age quickly;
d) Products whose price is subject to fluctuations on the financial market and over which the intermediary has no control;
e) Audio and video recordings and computer software whose seal has been broken after delivery; and
(f) Sealed products which, for reasons of health protection or
(g) hygiene and whose seal has been broken after delivery; and
(h) Products made at the consumer's request in accordance with the consumer's specifications.
Costs of withdrawal
14.1 If a consumer exercises his right of withdrawal, he must pay the cost of returning the goods.
14.2 If a consumer has paid an amount, the intermediary shall refund that amount to the consumer as soon as possible, but no later than 14 days after receipt of the withdrawal. Refunds shall be made via the same payment method that was used for the purchase, unless the consumer expressly agrees to a different payment method and the intermediary accepts that method. A prerequisite for a refund is that the product has already been received by the intermediary or supplier or conclusive proof of complete return is provided.
14.3 In the event of damage to the product due to careless handling by the consumer, the consumer will be liable for any reduction in the value of the product.
Complaints and disputes
15.1 If the Buyer has a complaint, the Buyer must notify the Intermediary in writing.
15.2 A complaint does not suspend the obligations of the Buyer or the Intermediary unless the Intermediary states otherwise in writing.
15.3 A complaint about the performance of the agreement must be made in writing, stating the reasons, within seven (7) days of the buyer discovering the defects.
15.4 A complaint shall be answered by an authorised representative within 14 days from the date of receipt. If a complaint has a foreseeable longer processing time, the complainant will be informed of this within 14 days and made aware of the period within which the complaint will be processed.
15.5 The mediator shall at all times have at least four (4) weeks to resolve a complaint by mutual agreement. After this period, the complaint shall be deemed to be a dispute for the purposes of Article 15.8.
15.6 If the intermediary declares a complaint to be justified, it will, at its discretion, replace or repair the delivered products free of charge. If a complaint cannot be resolved by mutual agreement, the complaint shall be deemed to be a dispute within the meaning of Article 15.8.
15.7 If the complainant is a consumer, he/she may also contact a complaint resolution service via the European ODR platform (https://ec.europa.eu/consumers/odr/).
15.8 All disputes arising out of or as a result of the Agreement or to which the Conditions apply shall be governed exclusively and irrespective of the domicile of the Buyer or a third party by Dutch law and shall be subject exclusively to the jurisdiction of the [JURIDICIAL COURT], unless provisions of mandatory law give rise to the jurisdiction of another court.
15.9 The applicability of the Vienna Sales Convention is excluded