terms-and-conditions

Terms and conditions

Last updated: May, 2022

Index:

Article 1 – Definitions

Article 2 – Identity of the trader, identity and capability of the consumer

Article 3 – Applicability

Article 4 – The offer

Article 5 – The contract

Article 6 – Right of withdrawal

Article 7 – Customers’ obligations in case of withdrawal

Article 8 – Customers who exercise their right of withdrawal and the costs involved

Article 9 – Traders’ obligations in case of withdrawal

Article 10 – Precluding the right of withdrawal

Article 11 – The price

Article 12 – Contract fulfillment and extra guarantee

Article 13 – Delivery and implementation

Article 14 – Extended duration transactions: duration, termination and prolongation

Article 15 – Payment

Article 16 – Investigation, Complaints and consumer’s obligations

Article 17 – Suspension and dissolution

Article 18 – Intellectual property and copyrights

Article 19 – Liability

Article 20 – Force majeure

Article 21 – Disputes

Article 22 – Additional or different stipulations

Article 1 - Definitions

The following definitions apply in these terms and conditions:

  1. Supplementary agreement: an agreement in which a consumer obtains products, digital content and/or services via a distance contract, and a trader or a third party delivers these products, digital content and/or services in accordance with an agreement between that third party and the trader;
  2. Withdrawal period: the period within which a consumer can make use of his right of withdrawal;
  3. Consumer: a natural person of adult age whose actions are not carried out for objectives relating to the course of a trade, a profession or a business;
  4. Day: calendar day;
  5. Digital content: data that are produced and supplied in digital form;
  6. Extended duration transaction: a distance contract relating to a series of products and/or services, whereby the obligation to supply and/or purchase is spread over a period of time;
  7. Durable medium: every means - including emails - that enables a consumer or trader to store information that is addressed to him in person in a way that facilitates its future use or consultation during a period that is in keeping with the objective for which the information is intended, and which facilitates the unaltered reproduction of the stored information;
  8. Right of withdrawal: the possibility for a consumer to waive a distance contract within the withdrawal period;
  9. Trader: a natural or legal person who offers products, (access to) digital content and/or services to consumers from a distance;
  10. Distance contract: a contract concluded between a trader and a consumer within the framework of system organized for the distance sale of products, digital content and/or services, whereby sole or partly use is made of one or more techniques for distance communication up to and including the moment that the contract is concluded;
  11. Model form for right of withdrawal: the European model form for right of withdrawal that is included in Appendix I of these terms and conditions. The trader is not obliged to provide Appendix I if the consumer has no right of withdrawal with regard to his order;
  12. Technique for distance communication: means that can be used for communication regarding the offer made by the trader and concluding a contract, without the necessity of the consumer and trader being in the same place at the same time.

Article 2 - Identity of the trader, identity and capability of the consumer

Identity of the trader:

Name trader: Fibby B.V.

Registered address: Stationsplein 45, 4th floor, 3013 AK Rotterdam, Netherlands

Email address: hello@fibby.org

Chamber of Commerce number: 80673015

VAT identification number: NL861757968B01

TÜV Rheinland Certification EN 13138-1:2021

LGA Products
GmbH Tillystraße 2 D
90431 Nürnberg
GERMANY

Identity and capability of the consumer:

The consumer declares, represents and warrants that he/ she/ it/ they is /are of adult age, is /are literate and is/ are capable of taking on responsibility for a child in water and in possible life threatening situations.

Article 3 - Applicability

  1. These general terms and conditions apply to every offer made by a trader and to every distance contract that has been realized between a trader and a consumer.
  2. Prior to the conclusion of a distance contract, 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, in what way the general terms and conditions are available for inspection at the trader’s premises and that they will be sent free of charge to the consumer, as quickly as possible, at the consumer’s request.
  3. If the distance contract is concluded electronically, then, contrary to the previous paragraph, and before the distance contract is concluded, the consumer will be provided with the text of these general terms and conditions electronically, in such a way that the consumer can easily store them on a durable data carrier. If this is not reasonably possible, then before concluding the distance contract, the trader will indicate where the general terms and conditions can be inspected electronically and that at his request they will be sent to the consumer free of charge, either electronically or in some other way.
  4. In cases where specific product or service-related terms and conditions apply in addition to these general terms and conditions, the second and third paragraphs apply by analogy and the trader may invoke the applicability the condition that is most favorable to him in the event of incompatible general terms and conditions when such additional specific product or service-related terms and conditions are recorded in writing, or in such a way that consumers can store them in a readily accessible manner on a durable medium.

Article 4 - The offer

  1. If an offer is subject to a limited period of validity or is made subject to conditions, this will be explicitly mentioned in the offer.
  2. The offer contains a complete and accurate description of the products, digital content and/or services being offered. The description is sufficiently detailed to enable the consumer to make a proper assessment of the offer. If the trader makes use of illustrations, these will be a true representation of the products and/or services being offered. The trader is not bound by obvious errors or mistakes in the offer.
  3. Every offer contains information that makes it clear to the consumer what rights and obligations are related to the acceptance of the offer.

Article 5 - The contract

  1. The contract will be concluded, subject to that which is stipulated in paragraph 4, at the moment at which the consumer accepts the offer and the conditions thereby stipulated have been fulfilled.
  2. If the consumer has accepted the offer electronically, the trader will immediately confirm receipt of acceptance of the offer electronically. The consumer can dissolve the contract as long as this acceptance has not been confirmed by the trader.
  3. If the contract is concluded electronically, the trader will take suitable technical and organizational measures to secure the electronic transfer of data and he will ensure a safe web environment. If the consumer is able to pay electronically, the trader will take suitable security measures.
  4. The trader may obtain information – within statutory frameworks – about the consumer’s ability to fulfill his payment obligations, as well as about facts and factors that are important for the responsible conclusion of the distance contract. If that research gives the trader proper grounds for declining to conclude the contract, then he has a right, supported by reasons, to reject an order or application or to bind its implementation to special conditions.
  5. The trader will send to a consumer, at the latest when delivering a product, service or digital content, the following information, in writing, or in such a way that the consumer can store it on an accessible durable medium:
    a. the office address of the trader’s business location where the consumer can lodge complaints;
    b. the conditions under which the consumer can make use of the right of withdrawal and the method for doing so, or a clear statement relating to preclusion from the right of withdrawal;
    c. information on guarantees and existing after-sales service;
    d. the price, including all taxes on the product, service or digital content; the costs of delivery insofar as applicable, and the method of payment, delivery or implementing the distance contract;
    e. the requirements for terminating the contract, if the duration of the contract exceeds one year or if it is indefinite;
    f. if the consumer has a right of withdrawal, the model form for right of withdrawal.
  1. In case of an extended duration contract, the stipulation in the previous paragraph applies only to the first delivery.

Article 6 - Right of withdrawal

Upon delivery of products

  1. When purchasing products, a consumer has the right to dissolve a contract, without giving reasons, during a period of at least 14 days. The trader is allowed to ask a consumer for the reason of this dissolution, but the consumer is under no obligation to state his/her reason(s).
  2. The period stipulated in para. 1 commences on the day after the product was received by the  consumer, or a third party designated by the consumer, who is not the transporting party, or:
  1. if the consumer has ordered several products: the day on which the consumer, or a third party designated by the consumer, received the last product. The trader may refuse a single order for several products with different delivery dates, provided he clearly informed the consumer of this prior to the ordering process.
  1. if the delivery of a product involves different deliveries or parts: the day on which the consumer, or a third party designated by the consumer, received the last delivery or the last part;
  2. with contracts for the regular delivery of products during a given period: the day on which the consumer, or a third party designated by the consumer, received the last product.

Upon delivery of services and digital content that is not supplied on a material medium:

  1. A consumer has the right to dissolve a contract, without giving reasons, for the supply of digital content that is not supplied on a material medium during a period of at least fourteen days. The trader is allowed to ask a consumer for the reason of this dissolution, but the consumer is under no obligation to state his/her reason(s).
  2. The period stipulated in para. 3 commences on the day after the contract was concluded.

Extended withdrawal period for products, services and digital content that is not supplied on a material medium in the event a consumer was not informed about the right of withdrawal:

  1. If the trader did not provide the consumer with the statutorily obligatory information about the right of withdrawal or if the model form was not provided, the withdrawal period ends twelve months after the end of the originally stipulated withdrawal period based on the previous paragraphs of this article.
  2. If the trader provided the consumer with the information referred to in the previous paragraph within twelve months of the commencing date of the original withdrawal period, the withdrawal period shall end 14 days after the day on which the consumer received the information.

Article 7 - Consumers’ obligations during the withdrawal period

  1. During the withdrawal period, the consumer shall treat the product and its packaging with care. He shall only unpack or use the product in as far as necessary in order to assess the nature, characteristics and efficacy of the product. The point of departure here is that the consumer may only handle and inspect the product in the same way that he would be allowed in a shop.
  2. The consumer is only liable for the product’s devaluation that is a consequence of his handling the product other than as permitted in para. 1.
  3. The consumer is not liable for the product’s devaluation if the trader did not provide him with all the statutorily obligatory information about the right of withdrawal before the contract was concluded.

Article 8 - Consumers who exercise their right of withdrawal and the costs involved

  1. A consumer who wants to exercise his right of withdrawal shall report this to the trader, within the withdrawal period, by means of the model form for right of withdrawal or in some other unequivocal way.
  2. As quickly as possible, but no later than 14 days after the day of reporting as referred to in para. 1, the consumer shall return the product, or hand it over to (a representative of) the trader. This is not necessary if the trader has offered to collect the product himself. The consumer will in any case have complied with the time for returning goods if he sends the product back before the withdrawal period has lapsed.
  3. The consumer returns the product with all relevant accessories, if reasonably possible in the original state and packaging, and in accordance with the reasonable and clear instructions provided by the trader.
  4. The risk and the burden of proof for exercising the right of withdrawal correctly and in time rest upon the consumer.
  5. The consumer bears the direct costs of returning the product. If the trader has not declared that the consumer shall bear these costs or if the trader indicates a willingness to bear these costs himself, then the consumer shall not be liable to bear the costs of returning goods.
  6. If the consumer exercises his right of withdrawal, after first explicitly having asked that the service provided or the delivery of gas, water or electricity not prepared for sale shall be implemented in a limited volume or a given quantity during the period of withdrawal, the consumer shall owe the trader a sum of money that is equivalent to that proportion of the contract that the trader has fulfilled at the moment of withdrawal, in comparison with fulfilling the contract entirely.
  7. The consumer shall bear no costs for implementing services or the supply of water, gas or electricity not prepared for sale – in a limited volume or quantity – or for delivering city central heating, if:
  1. the trader did not provide the consumer with the statutorily obligatory information about the right of withdrawal, the costs payable in the event of withdrawal or the model form for right of withdrawal, or:
  2. the consumer did not explicitly ask about the commencement of implementing the service or the delivery of gas, water, electricity or city central heating during the period of withdrawal.
  1. The consumer shall bear no costs for the entire or partial supply of digital content that is not supplied on a material medium, if:
  1. prior to delivery, he did not explicitly agree to commencing fulfillment of the contract before the end of the period of withdrawal;
  2. he did not acknowledge having lost his right of withdrawal upon granting his permission; or
  3. the trader neglected to confirm this statement made by the consumer.
  1. If a consumer exercises his right of withdrawal, all supplementary agreements are legally dissolved.

Article 9 - Traders’ obligations in a case of withdrawal

  1. If the trader makes it possible for a consumer to declare his withdrawal via electronic means, then after receiving such a declaration, he sends immediate confirmation of receipt.
  2. The trader reimburses the consumer immediately with all payments, including any delivery costs the trader charged for the returned product, though at the latest within 14 days after the day on which the consumer reported the withdrawal. Except in cases in which the trader has offered to retrieve the product himself, he can postpone refunding until he has received the product or until the consumer proves he has returned the product, depending on which occurs earlier.
  3. For any reimbursement, the trader will use the same payment method that was initially used by the consumer, unless the consumer agrees to another method. Reimbursement is free of charge for the consumer.
  4. If the consumer chose an expensive method of delivery in preference to the cheapest standard delivery, the trader does not have to refund the additional costs of the more expensive method.

Article 10 - Precluding the right of withdrawal

The trader can preclude the right of withdrawal for the following products and services, but only if the trader stated this clearly when making the offer, or at least in good time prior to conclusion of the contract:

  1. Products or services whose prices are subject to fluctuations on the financial market over which the trader has no influence and which can occur within the period of withdrawal;
  2. Contracts concluded during a public auction. A public auction is defined as a sales method whereby a trader offers products, digital content and/or services at an auction, under the directions of an auctioneer, and whereby the successful purchaser is obliged to purchase the products, digital content and/or services;
  3. Service contracts, after full completion of the service, but only if:
  1. implementation started with the explicit prior agreement of the consumer; and
  2. the consumer declared having lost his right or withdrawal as soon as the trader had completed the contract in full;
  1. Package travels, package holidays and package tours as referred to in article 7:500 BW and contracts on passenger transport;
  2. Service contracts providing access to accommodation, if the contract already stipulates a certain date or period of implementation and other than for the purpose of accommodation, the transport of goods, car rental services and catering;
  3. Contracts relating to leisure activities, if the contract already stipulates a certain date or period of implementation;
  4. Products manufactured according to the consumer’s specifications, which were not prefabricated and were made based on a consumer’s specific choice or decision, or which are clearly intended for a specific person;
  5. Products subject to rapid decay or with a limited shelf-life;
  6. Sealed products that, for reasons relating to the protection of health or hygiene, are unsuited to returning and whose seal was broken subsequent to delivery;
  7. Products that, due to their nature, have been irretrievably mixed with other products;
  8. Alcoholic drinks whose price was agreed when concluding the contract, but the delivery of which can only take place after 30 days, and the actual value of which depends on market fluctuations over which the trader has no influence;
  9. Sealed audio/video-recordings and computer apparatus whose seal was broken after delivery;
  10. Papers or magazines, except for subscriptions;
  11. The delivery of digital content other than on a material medium, but only if:
  1. the delivery commenced with the consumer’s explicit prior agreement, and
  2. the consumer declared that this implied his having lost his right of withdrawal.

Article 11 - The price

  1. During the period of validity indicated in the offer, the prices of the products and/or services being offered will not be increased, except for price changes in VAT-tariffs.
  2. Contrary to the previous paragraph, the trader may offer products or services at variable prices, in cases where these prices are subject to fluctuations in the financial market over which the trader has no influence. The offer must refer to this link with fluctuations and the fact that any prices mentioned are recommended prices.
  3. Price increases within 3 months after the contract was concluded are only permitted if they are the result of statutory regulations or stipulations.

Price increases more than 3 months after the contract was concluded are permitted and the trader shall be entitled to charge changes in the cost price factors of the contract to the other party, such as, among others, the prices of raw materials and substances, including but not limited to, steel, plastics, synthetics and wood, as well as the prices of auxiliary materials and labor costs, insurances, freight charges, exchange rates, taxes, levies or other government measures.If such an increase in cost price factors occurs and the increase is more than 10%, then the consumer is authorized to terminate the contract on the day on which such price increase takes effect.

  1. Prices stated in offers of products or services include VAT.
  2. The trader shall be entitled to perform and invoice its obligations in parts/ consignments.

Article 12 - Contract fulfillment and (extra) guarantee

  1. The trader guarantees that the goods and/or services fulfill the contract, the specifications stated in the offer, the reasonable requirements of reliability and/or serviceability and the statutory stipulations and/or government regulations that existed on the date that the contract was concluded. If agreed the trader also guarantees that the product is suited for other than normal designation. Announcements made by the trader or on the trader’s behalf relating to the quality, composition, application possibilities, properties, treatment in the broadest sense of the word, etc. of delivered goods, shall only serve as an obligation to achieve a result if they have been explicitly confirmed in writing by the trader as an obligation to achieve a result and on the condition that the consumer has complied with all of his obligations vis-à-vis the trader by virtue of the contract. In all other cases, an obligation to perform to the best of the trader’s abilities shall be concerned.
  2. The guarantee referred to under 1. also applies if: (i) the goods to be delivered are destined for use abroad and (ii) the consumer expressly notified the trader of this use in writing at the time of concluding the contract
  3. If the good delivered does not comply with said guarantee, the trader shall, at his discretion, replace or see to the repair of the good, within a reasonable period of time following the return and receipt thereof, or, if the good cannot reasonably be returned, following notification of the defect by the consumer in writing. In the event of replacement, the consumer shall already now undertake to return the replaced good to the trader and to transfer ownership thereof to the trader.
  4. The guarantees mentioned shall not apply when the defect originated as the result of injudicious or improper use or when, without trader's written consent, the consumer or third parties have introduced changes or tried to introduce changes to the good or used it for purposes for which the good was not intended.
  5. If the delivered good does not correspond to what was agreed and this non-conformity is a defect within the meaning of the regulation on product liability, the trader is not liable for any consequential damage.
  6. The provisions in these general terms and conditions regarding guarantees do not affect the consumer's guarantee claims based on the law, all with due regard for the provisions in these general terms and conditions and the contract, including the nature and quality of that which is sold and delivered to the consumer.
  7. An extra guarantee arrangement offered by the trader, manufacturer or importer can never affect the statutory rights and claims that a consumer can enforce against the trader on the grounds of the contract if the trader failed to fulfill his part in the contract.
  8. An extra guarantee is defined as every commitment of a trader, his supplier, importer or manufacturer that grants a consumer rights or claims, in excess of those provided by law, for the event that he fails to fulfill his part in the contract.

Article 13 - Delivery and implementation

  1. The trader will take the greatest possible care when receiving and implementing orders for products and when assessing applications for the provision of services.
  2. The place of delivery is deemed to be the address that the consumer makes known to the company. The consumer is obliged to take delivery of the purchased goods at the time they are available to him or are handed over to him.
  3. In case the consumer refuses to take delivery or fails to provide information or instructions necessary to the delivery, the items destined for delivery shall be stored at the consumer's risk after having been notified by the trader. The consumer shall in that case owe all additional costs.
  4. If the trader and the consumer agree upon delivery, the delivery of purchases shall be free of charge, unless the trader has informed the consumer of the relevant conditions when the contract was concluded. Upon delivery, the trader shall reserve the right to invoice the costs of delivery separately.
  5. If delivery is carried out in phases, the trader may suspend the implementation of those parts belonging to a subsequent phase until the consumer has approved, in writing, the results of the preceding phase.
  6. If, in the framework of the execution of the contract, the trader requires data from the consumer, the term of delivery shall commence after the consumer has provided the trader with such data.Terms of delivery agreed upon with the consumer shall serve as an indication and not as a final deadline. Time of delivery is not of the essence of the contract. Taking into consideration that which is stated in article 4 of these general terms and conditions, the company will try and implement accepted orders with efficient expedition, in principle at the latest within 30 days, unless a different period of delivery has been agreed. If delivery suffers a delay, or if the delivery cannot be implemented, or only partially, the consumer will be informed about this at the latest 30 days after the order was placed.In case the period of delivery to consumers in the Netherlands or the EU exceeds 30 days, the consumer has a right to dissolve the contract free of charge and a right to possible damages, unless the parties have found agreement on a different and /or new date of delivery.
  7. Following dissolution in accordance with the previous paragraph, the trader refunds the consumer immediately the sum he had paid.
  8. The trader shall be entitled to perform and invoice its obligations in consignments.
  9. The risk of damage and/or loss of products rests upon the trader up to the moment of delivery to the consumer or a representative previous designated by the consumer and announced to the trader, unless this has explicitly been agreed otherwise.

Article 14 - Extended duration transactions: duration, termination and prolongation

Termination

  1. The consumer has a right at all times to terminate an open-ended contract that was concluded for the regular supply of products (including electricity) or services, subject to the agreed termination rules and a period of notice that does not exceed one month.
  2. The consumer has a right at all times to terminate a fixed-term contract that was concluded for the regular supply of products (including electricity) or services at the end of the fixed-term, subject to the agreed termination rules and a period of notice that does not exceed one month.
  3. With respect to contracts as described in the first two paragraphs, the consumer can:

- terminate them at all times and not be limited to termination at a specific time or during a specific period;

- terminate them in the same way as that in which they were concluded;

- always terminate them subject to the same period of notice as that stipulated for the trader.

Prolongation

  1. A fixed-term contract that was concluded for the regular supply of products (including electricity) or services may not be automatically prolonged or renewed for a fixed period of time.
  2. In departure from that which is stated in the previous paragraph, a fixed-term contract that has been concluded for the regular supply of daily or weekly newspapers or magazines may be automatically prolonged for a fixed term that does not exceed three months, if the consumer is at liberty to terminate this prolonged contract towards the end of the prolongation, with a period of notice that does not exceed one month.
  3. A fixed-term contract that has been concluded for the regular supply of products or services may only be automatically prolonged for an indefinite period of time if the consumer has at all times the right to terminate, with a period of notice that does not exceed one month and, in the case of a contract to supply daily or weekly newspapers or magazines regularly but less than once per month, a period that does not exceed three months.
  4. A fixed term contract for the regular supply, by way of introduction, of daily or weekly newspapers and magazines (trial subscriptions or introductory subscriptions) will not be automatically prolonged and will automatically terminate at the end of the trial period or introductory period.

Duration

  1. If the fixed-term of a contract exceeds one year, then after one year the consumer has at all times a right to terminate, with a period of notice that does not exceed one month, unless reasonableness and fairness dictate that premature termination of the contract would be unacceptable.

Article 15 - Payment

  1. As far as no other date is stipulated in the contract or supplementary conditions, sums payable by the consumer should be paid without any discount or set-off within 14 days after commencement of the withdrawal period, or in the absence of a withdrawal period within 14 days after the conclusion of the contract. In the case of a contract to provide a service, this 14-day period starts on the day after the consumer received confirmation of the contract.
  2. The trader is authorized to charge a 50% advance payment to the consumer. Where advance payment is stipulated, the consumer cannot invoke any rights whatsoever in relation to the implementation of the order or service(s) in question before the stipulated advance payment has been made.
  3. The consumer is obliged to report immediately to the trader any inaccuracies in payment data provided or stated.
  4. If a consumer fails to fulfill his payment obligation(s) in good time, after the trader has informed the consumer about the late payment, the consumer is allowed 14 days in which to fulfill the obligation to pay; if payment is not made within this 14-day period, statutory interest will be payable over the sum owed and the trader has the right to charge reasonable extrajudicial costs of collection he has incurred. These costs of collection amount to, at the most: 15% of unpaid sums up to €2,500; 10% over the next €2,500; and 5% over the next €5,000, with a minimum of €40. The trader can make departures from these sums and percentages that are favorable to the consumer.
  5. All goods delivered to the consumer remain the property of the trader until such time as full payment of all amounts, including costs, owed by the consumer for the goods delivered or to be delivered or services performed or to be performed under the contract, as well as all other claims of the trader against the consumer on account of failure to perform the said contract or on any other ground whatsoever, has been received. The consumer is required to treat the goods with due care and is not entitled to encumber, dispose of, pledge and/or create a (silent) pledge on the delivered goods other than with the written consent of the trader, as long as the consumer has not fully met his obligations vis-à-vis the trader. If the trader dissolves the order wholly or in part, he shall be entitled to take back the unpaid part of the goods delivered. Dissolution and/or repossession do not affect the trader's right to compensation.
  6. The trader shall be entitled to have payments made by the consumer go first of all to reduce the costs, subsequently to reduce the interest still due and finally to reduce the principal sum and the current interest. The trader may, without thereby being in default, refuse an offer of payment if the consumer designates a different sequence of attribution. The trader can refuse full repayment of the principal sum, if this does not include the accrued and current interest as well as the costs.
  7. The following applies to credit card payments: The credit card transaction will be charged to the cardholder immediately.

Article 16 – Investigation, Complaints and consumer’s obligations

  1. The consumer is obliged to inspect the delivered goods, or have them inspected, at the time of delivery, but in any case within the shortest possible time. In doing so, the consumer must examine whether the quality and quantity of what is delivered corresponds to what was agreed, or at least meets the requirements that apply to it in the ordinary course of trade.
  2. Possible visible shortcomings must be reported in writing to the trader within three days following delivery and this together with the simultaneous submission of the certificate of guarantee and the defective good, unless this is impossible or unreasonably onerous.  
  3. An invisible defect must be reported by the consumer to the trader within 2 days following its discovery, but no later than within the guarantee period, with due observance of the provisions of the previous paragraph of this article. After expiry of the guarantee period, the trader shall be entitled to charge all costs for repair or replacement, including administration, shipment and call-out charges.
  4. If, pursuant to the previous paragraph, a complaint is lodged in time, the consumer shall remain obliged to take delivery of and pay for the goods purchased. If the consumer wishes to return defective goods, this shall take place with the prior written consent of the trader and in the manner indicated by the trader.
  5. The trader provides for a complaints procedure, that has been given sufficient publicity, and will deal with a complaint in accordance with this complaints procedure.
  6. A consumer who has discovered shortcomings in the implementation of a contract must submit any complaints to the trader without delay and in any event before the first use of the good, in full and with clear descriptions. If the good delivered is reported to be defective, the trader shall, at his discretion, replace or see to the repair of the good, within a reasonable period of time following receipt thereof, or, if the good cannot reasonably be returned, following notification of the defect by the consumer in writing. In the event of replacement, the consumer shall already now undertake to return the replaced good to the trader and to transfer ownership of it to the trader.
  7. A reply to complaints submitted to the trader will be provided within a period of 14 days, calculated from the date of receipt. If it is anticipated that a complaint will require a longer processing time, then the trader will reply within 14 days, confirming receipt and indicating when the consumer can expect a more elaborate reply.
  8. The consumer should give the trader a time period of at least 4 weeks to solve the complaint in joint consultation. After this period of time, the complaint  becomes a dispute that is subject to the disputes settlement scheme.
  9. The consumer is obliged to inspect the goods before and after each use. In doing so, the consumer must examine and identify end-of-life when the attachments between the good and the vest are weakened. Do a visual check as follows and as further indicated on the product leaflet delivered with the good:
  • Solid attachment lower strap, at the back (Fig. 5 - A of the leaflet).
  • Solid neoprene attachment Fibby®/vest on the back (left & right side) (Fig. 5 - B of the leaflet).
  • Strength neoprene attachment (by stretching) (Fig. 5 - C of the leaflet).
  • Solid attachment strap at the chest (Fig. 5 - D of the leaflet).

If end-of-life is identified, the good may no longer be used. The useful life of the good is no longer than 3 years from the purchase date.

The consumer acknowledges and is aware that the good will not protect from drowning. The consumer acknowledges and is aware that the use of the good is at the consumer’s own responsibility and the consumer’s own risk. The trader explicitly declines any and all responsibility and liability. The consumer is obliged to use the good and/or have the good used only under the continuous supervision of an adult. The consumer is obliged to supervise the child constantly in direct reach. The consumer acknowledges and is aware that the good is designed for children with an approximate body weight of 15-30kg. The consumer acknowledges and is aware that the good may not be used  in breaking waves. The consumer acknowledges and is aware that the good maynot be bitten or chewed. The consumer acknowledges and is aware that there is risk of suffocation in case of ingestion of detached parts.

Article 17 – Suspension and dissolution

  1. The trader shall be authorized to suspend the fulfillment of the obligations or to dissolve the contract, if
    - the consumer does not fulfill or does not fully fulfill his obligations resulting from the contract.
    - after the contract has been concluded, the trader learns of circumstances giving good ground to fear that the consumer will not fulfill his obligations. In case there are good reasons to fear that the consumer will only partly or not properly fulfill his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
    - the consumer, at the conclusion of the contract, was requested to provide security for the fulfillment of his obligations under the contract and that this security is not provided or insufficient.
    - there is bankruptcy, suspension of payment or a guardianship order on the part of the consumer,, the trader shall be entitled, at the trader’s discretion, to wholly or partially dissolve the agreement or to suspend the (further) performance of the agreement, without any obligation to pay damages and without any prejudice to the further rights vested in trader. In the cases listed above, the trader shall furthermore be entitled to claim immediate fulfillment of what is due to it.
  2. The trader shall furthermore be authorized to dissolve the contract (have the contract dissolved) if circumstances arise of such a nature that fulfillment of the contract becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the contract can no longer be demanded in all reasonableness.
  3. If the contract is dissolved, the trader's claims against the consumer shall be immediately due and payable. If the trader suspends fulfillment of his obligations, he shall retain his rights under the law and the agreement.
  4. The trader shall always retain the right to claim damages.

Article 18 – Intellectual property and copyrights

  1. Without prejudice to the other provisions of these general terms and conditions, the trader shall reserve the rights and authorities to which the trader is entitled under the Copyright Act (Auteurswet) and any other intellectual property rights.
  2. The consumer shall not be allowed to make changes to the goods, unless otherwise agreed upon in writing.
  3. The designs, sketches, drawings, films, software and other materials or (electronic) files possibly produced by the trader within the framework of the contract, shall remain the property of the trader, irrespective of whether they have been handed over to the consumer or to third parties, unless otherwise agreed in writing.
  4. All documents possibly provided by trader, such as designs, sketches, drawings, films, software, (electronic) files, etc., are exclusively destined to be used by the consumer and may not be reproduced, made public or brought to the notice of third parties by the consumer without prior consent from trader, unless otherwise agreed upon in writing.
  5. The trader shall retain the right to use any knowledge gained in performing the obligations, work and /or services for other purposes, to the extent that no confidential information is brought to the attention of third parties.

Article 19 – Liability

  1. If the goods delivered by the trader are defective, the trader's liability towards the consumer shall be limited to what is provided for under "Guarantees" in these terms and conditions.
  2. If the producer of a defective good or parts thereof is liable for consequential damage, the trader's liability shall be strictly limited to not more than repairing or replacing the good, or to refunding the purchase price.
  3. Without prejudice to the above, the trader shall not be liable if and to the extent the damage is due to intentional and/or grossly negligent and/or culpable actions, or to injudicious or improper use on the part of the consumer.
  4. The limitations of liability for direct damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or gross negligence on the part of the trader or his subordinates.


Article 20 – Force majeure

  1. The parties shall not be bound to comply with any obligation if they are prevented from doing so as a consequence of a circumstance through no fault of their own and which is not for their account pursuant to the law, a juristic act or generally accepted practice.
  2. In addition to the provisions of the law and jurisprudence in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not,  beyond the will and control of the parties, but which prevents the relevant party from fulfilling his obligations. Circumstances that will in any case not be for account of the trader (force majeure), shall be: behaviour of people, subject to gross negligence or intention, whose services trader uses for the execution of the engagement, unsuitability of goods trader uses for the execution of the engagement, the exercise by a third party vis-à-vis the other party of one or more rights with respect to a failure on the part of the other party to comply with an agreement concluded between the other party and said third party concerning goods delivered or to be delivered by trader, industrial action, local strikes, lockout, sickness, import / export or transit prohibitions, sanctions, import and/ or export and/or customs constraints and/or import barriers, transport problems, non- compliance with their obligations by suppliers, interruptions in the product process, shortage of parts, materials, production resources or semi finished products,  epidemics or pandemics, natural and/or or nuclear disasters, wars and/or the threat of war and terrorism and/or the threat of terrorist attacks.
  3. Trader shall also be entitled to invoke force majeure if the circumstance preventing (further) performance commences after the point in time on which trader should have fulfilled his obligation.
  4. The parties may suspend their obligations under the contract during the period of force majeure. If this period lasts for more than two months, either party shall be entitled to dissolve the contract without any obligation to pay the other party damages.
  5. Insofar trader has already partially fulfilled, or shall be able to fulfill, his obligations resulting from the contract at the moment the circumstance of force majeure commenced and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled, trader shall be entitled to separately invoice the part already fulfilled or still to be fulfilled. The consumer shall be held to pay this invoice as if it were a separate contract.
  6. A potential default on the part of parties shall lapse if subsequently a situation of force majeure arises.
  7. Trader shall be entitled to dissolve the agreement with immediate effect if any changes occur to the cost price factors which trader cannot (any longer) charge on to the other party and which are of such a nature that the other party reasonably cannot expect the unaltered continuation of the agreement.

Article 21 - Disputes and Competent Court

  1. Contracts entered into between a trader and a consumer and which are subject to these general terms and conditions are subject only to Dutch law.
  2. Any dispute, controversy or claim arising out of or in relation to the contract between the trader and the consumer and/or in relation to these general terms and conditions, including the validity, invalidity, breach or termination thereof, shall be settled by the court of Rotterdam, the Netherlands.

Article 22 - Additional or different stipulations

Additional stipulations or stipulations that differ from these general terms and conditions, may only be detrimental to the consumer when recorded in writing, or in such a way that consumers can store them in a readily accessible manner on a durable medium.

 

Appendix I: Model form for right of withdrawal

Model form for right of withdrawal

(this form should only be completed and returned if you want to withdraw from the contract)

- To: [trader’s name]

[trader’s geographic address]

[trader’s fax number, if available]

[trader’s e-mail address or electronic address]

- I/we* herewith inform you that, in respect of our contract regarding

The sale of the following products: [description of the product}*

The delivery of the following digital content: [description of the digital content]*

The supply of the following service: [description of the service]*

I/we* exercise our right of withdrawal.

- Ordered on*/received on* [date of ordering services or receiving goods]

- [Consumer(s)’ name]

- [Consumer(s)’ address]

- [Consumer(s)’ signature] (only if this form is submitted on paper)

- [Date]

*Delete or provide supplementary information, as applicable.