ARTICLE 1. | DEFINITIONS
In these general terms and conditions the following terms, always with a capital letter, shall have the following meaning.
- Wellywoofandco part of Van den Bergh’In en Export Mij. .V. (vlielandseweg 24a – 2641KC Pijnacker, The Netherlands: The user of these general terms and conditions, located at Via Roma Capitale 359, 55041 LU, Lido di Camaiore (Italy).
- Client: any natural or legal person with whom Wellywoofandco has concluded or intends to conclude an Agreement.
- Consumer: a Client, natural person, not acting in the exercise of a profession or business.
- Parties: Wellywoofandco and the Client jointly.
- Agreement: any agreement between the Parties as part of which Wellywoofandco undertakes to sell and deliver Products to the Client.
- Distance Contract: an Agreement concluded between Wellywoofandco and a Consumer as part of an organized system for distance selling without the simultaneous personal presence of Wellywoofandco and the Consumer and whereby, up to and including the moment at which the Agreement is concluded, exclusive use is made of one or more means of distance communication, such as an Agreement with a Consumer that is concluded directly via the Web shop. Therefore an Agreement is not a Distance Contract if Wellywoofandco does not use an organized system for distance communication, for example if the Consumer looks up the contact information of Wellywoofandco on the Internet or in a phone book and concludes an Agreement by telephone.
- Products: the goods to be delivered to the Client by Wellywoofandco in the context of the Agreement, which may include, but is not limited to, accessories for dogs, such as harnesses, lines, hoodies, bandanas and collars, as well as clothing for people.
- Webshop www.wellywoofandco.com.
- In Writing: in addition to traditional written communication, communication by e-mail or any other means of communication which, in view of the state of the art and generally accepted practice, can be regarded as equivalent to being written.
ARTICLE 2. | GENERAL PROVISIONS
- These general conditions are applicable to any offer of Wellywoofandco and any Agreement.
- Any general terms and conditions of the Client, by whatever name, do not apply to the Agreement.
- The provisions of these general terms and conditions may only be deviated from explicitly and in writing. If and insofar as what the Parties have expressly agreed in Writing differs from the provisions of these general terms and conditions, provisions that the Parties have expressly agreed in Writing, shall apply.
- The nullity or invalidity of one or more of the provisions of these general terms and conditions or the Agreement as such does not affect the validity of the remaining provisions. In such a case, the Parties are obliged to consult in order to reach a substitute arrangement with regard to the affected clause. In doing so, the purpose and purport of the original provision will be taken into account to the extent possible.
ARTICLE 3. | OFFERS AND CONCLUSION OF AGREEMENTS
- Each oral and written offer of Wellywoofandco, as well as their offer in the Web shop, is non-binding, even if a deadline for acceptance is specified. Wellywoofandco can revoke their offer immediately after or as soon as possible after acceptance by the Client.
- Wellywoofandco can explicitly demand a minimum order quantity for their offers to non-Consumers.
- The Client cannot derive any rights from an offer of Wellywoofandco that contains an obvious mistake or error.
- Without prejudice to the provisions of paragraph 1, every Agreement is concluded by means of an offer and acceptance. If the acceptance of the Client deviates from the offer of Wellywoofandco, the Agreement shall not be established in accordance with this deviating acceptance, unless Wellywoofandco indicates otherwise. Without prejudice to the provisions of paragraph 1, any order made through the Web Shop is to be confirmed to the Client by e-mail.
- If Wellywoofandco provides the Client with an order confirmation in Writing, based on an Agreement that was concluded verbally, this confirmation shall be considered to be an accurate and complete representation of the Agreement, unless the Client has filed a reasoned complaint in Writing within two working days after receiving the confirmation.
- If the Client concludes the Agreement in the name of another natural or legal person, they declare to be authorised to do so by entering into the Agreement. In addition to this (legal) person, the Client is jointly and severally liable for the performance of all obligations arising from that Agreement.
ARTICLE 4. | RIGHT OF TERMINATION FOR DISTANCE CONTRACTS
- Subject to the provisions of the remainder of this Article and in particular those of the following paragraph, the Consumer may terminate the Distance Contract, in whole or in part, without giving reasons, up to 14 days after the Products have been received by them or on their behalf.
- The Consumer has no right of termination in case of:
- the delivery of Products which are not suitable to be returned for reasons of health protection or hygiene and of which the seal has been broken after delivery;
- the delivery of Products in respect of which the right of termination is otherwise excluded or does not apply pursuant to Section 6.5.2B of the Dutch Civil Code.
- The Consumer may terminate the Distance Contract by sending an e-mail to that effect (email@example.com) or by using the Wellywoofandco Model Form for withdrawal. As soon as possible after Wellywoofandco has been informed about the intention of the Consumer to terminate the Distance Contract and if the conditions of this article have been met, Wellywoofandco will confirm the termination of the Distance Contract by e-mail.
- During the period referred to in paragraph 1, the Products to be returned and their packaging must be handled with care. The Consumer may only handle and inspect the Products to the extent necessary to assess the nature and characteristics of the Products. The principle is that the Products may only be handled and inspected as one would in a physical store.
- If the Consumer exercises the right of termination, they shall return the Products to Wellywoofandco in undamaged condition with all delivered accessories and in the original condition and packaging.
- The Consumer is liable for any decrease in value of the Products resulting from a manner of handling the Products that goes beyond what is permitted under paragraph 4. Wellywoofandco is entitled to charge this depreciation to the Consumer, whether or not by offsetting this depreciation with the payment already received from the Consumer.
- The Products in question must be returned within 14 days after the Consumer has invoked the right of termination in accordance with paragraph 3.
- If the Consumer makes use of the right of termination, the costs of returning the Products shall be borne by the Consumer.
- Wellywoofandco shall reimburse the payment received from the Consumer, minus the possible depreciation as referred to in paragraph 6, as soon as possible but no later than within 14 days after the termination of the Distance Contract, provided that the Products have been received by Wellywoofandco, or that the Consumer can prove that the Products have actually been returned. If the right of termination is only applied to a part of the order, the delivery costs paid by the Consumer in the first instance are not eligible for reimbursement. Furthermore, Wellywoofandco is not obligated to reimburse the additional costs if the Consumer has explicitly chosen another way than the least expensive way of standard delivery offered by Wellywoofandco.
ARTICLE 5. | DELIVERY TIMES
- All possible delivery times to which Wellywoofandco has undertaken to the Client, are indicative, non-fatal times.
- Wellywoofandco shall not be in default until after the Client has given Wellywoofandco notice of default in Writing, in which notice of default a reasonable time period for the performance is stated, and Wellywoofandco is still in default of the performance after the expiration of the last-mentioned period.
ARTICLE 6. | DELIVERY
- Delivery of Products shall take place by delivery to the delivery address provided by the Client or in the manner customary in the industry.
- The risk of loss and damage to the Products shall pass to the Client at the moment when the Products are received by or on behalf of the Client.
- If the agreed delivery term is exceeded, the Client shall never be entitled to refuse to accept the Products to be delivered and/or to pay the agreed price and any delivery costs.
- Any import duties are for the account of the Client.
- If the Products cannot be delivered to the Client, or cannot be delivered on time, due to a circumstance attributable to the Client, Wellywoofandco shall be entitled to store the Products at the expense of the Client, without prejudice to the Client's obligation to pay the agreed price and any delivery charges.
ARTICLE 7. | EXAMINATION, COMPLAINTS & (LEGAL) GUARANTEE
- At the moment of delivery, or at least immediately thereafter, the Client must examine whether the nature and quantity of the Products comply with the Agreement. If, in the opinion of the Client, the nature and/or quantity of the Products do not correspond to the Agreement, the Client must indicate this immediately after delivery by e-mail to Wellywoofandco (firstname.lastname@example.org), on the understanding that, if the Products are delivered at the same time in the presence of the Client, the nature and quantity of the Products shall be deemed to be in accordance with the Agreement if the Products have been brought along by or on behalf of the Client.
- In the event of any defects that were not reasonably visible to the Client at the time of delivery, the Client must report this by e-mail within seven days after they become aware of the existence of the defect, or at least could reasonably have become aware of it (email@example.com) to Wellywoofandco.
- The provisions of the previous paragraph are without prejudice to the mandatory complaint period for Consumers.
- If the Client does not complain on time or in accordance with the provisions of the previous paragraph, Wellywoofandco will not be under any obligation whatsoever arising from such a complaint from the Client.
- Even if the Client complains in a timely manner, their obligation to pay Wellywoofandco in time shall remain insofar as the law for the benefit of the Consumer does not bar this obligation.
- Defects of the Products that are the result of an external cause after delivery or any other circumstance that cannot be attributed to Wellywoofandco are no reasons for complaint. These shall include but are not limited to defects resulting from damage, natural wear and tear, war damage, improper or injudicious treatment and incorrect or injudicious use of the Products.
- Products shall only be supplied under guarantee if and insofar as this has been explicitly agreed upon in writing, on the understanding that any guarantee provided by Wellywoofandco, importer or manufacturer does not affect the mandatory legal rights and claims that the Consumer may assert against Wellywoofandco in the context of the consumer purchase (legal guarantee/conformity).
- Subject to the provisions of Article 4, products can never be returned without prior written permission of Wellywoofandco.
ARTICLE 8. | FORCE MAJEURE
- Wellywoofandco shall not be obliged to fulfil any obligation under the Agreement if and for as long as they are hindered in doing so by a circumstance that cannot be attributed to them under the law, a juristic act or generally accepted practice. Force majeure shall include, in addition to its definition in the law and in case law, epidemics, pandemics, fire, measures of any government, transport restrictions, violent or armed actions, disruptions in communication links or in equipment or software of Wellywoofandco or third parties.
- If and insofar as the situation of force majeure renders compliance with the Agreement permanently impossible or continues for more than one month, the Parties shall be entitled to terminate the Agreement with immediate effect, without judicial intervention.
- If Wellywoofandco has already partially fulfilled their delivery obligations at the start of the force majeure situation, or can only partially fulfil their delivery obligations, they are entitled to charge the already delivered part or still deliverable part of the Agreement separately, as if there were an independent Agreement.
- Damage resulting from force majeure shall never be eligible for compensation, without prejudice to application of the previous paragraph.
ARTICLE 9. | SUSPENSION AND TERMINATION
- Wellywoofandco shall be authorized, if the circumstances of the case reasonably justify suspension, to suspend the execution of the Agreement without judicial intervention or to terminate the Agreement in whole or in part with immediate effect, if and insofar as the Client does not timely or not completely fulfil their obligations under the Agreement, or if, after the conclusion of the Agreement, Wellywoofandco learns of circumstances that give Wellywoofandco good reason to fear that the Client will not fulfil their obligations. If the Client’s inability or imminent inability to perform their obligations is not permanent, the right to terminate shall only arise after the Client has been given notice of default by Wellywoofandco in Writing stating a reasonable period within which the Client may perform their obligations (as yet) and if they still fail to do so after the expiry of the last-mentioned period.
- If the Client is in a state of bankruptcy, has applied for a (provisional) suspension of payments, if their goods are seized or if they are otherwise unable to dispose freely of their assets, Wellywoofandco will be entitled to terminate the Agreement with immediate effect and without judicial intervention, unless the Client has already provided sufficient security for the fulfilment of their payment obligations under the Agreement.
- The Client shall never claim any form of compensation in connection with the suspension or termination right exercised by Wellywoofandco.
- The Client is obliged to compensate Wellywoofandco for the damage suffered as a result of the suspension or termination of the Agreement.
- If Wellywoofandco terminates the Agreement, all claims that Wellywoofandco has against the Client are immediately due and payable.
ARTICLE 10. | PAYMENT TERMS
- The amount owed by the Client to Wellywoofandco must be paid in full at the conclusion of the Agreement, on the understanding that Wellywoofandco will not require a Consumer to pay more than 50% of the agreed purchase price in advance. However, if the Consumer has already opted for prepayment of more than half of the purchase price, they shall remain bound by this choice.
- Wellywoofandco is not obliged to (continue) to perform the Agreement until after the Client has fulfilled all their payment obligations towards Wellywoofandco that are already due and payable. In accordance with the provisions of Article 9, Wellywoofandco is therefore entitled to suspend the execution of the Agreement in case of default of payment by the Client until the Client has cleared their payment default.
- Payments must be made in the manner indicated by Wellywoofandco and at the time indicated by Wellywoofandco or within the period indicated by Wellywoofandco.
- Wellywoofandco is entitled to make the invoice for the Client available in an electronical way only.
- If the Client is in a state of bankruptcy, has applied for a (provisional) suspension of payments, their goods are seized, or in case the Client cannot freely dispose of their assets in any other way, the claims against the Client are immediately due and payable.
- If payment is not made in time, the Client shall be in default by operation of law. From the day that the Client is in default, the Client shall owe interest of 2% per month on the outstanding amount, whereby part of a month shall be deemed to be a full month. Contrary to the previous sentence, the contractual interest rate referred to therein shall be replaced by the statutory interest rate applicable at the time of payment default if the Client is a Consumer.
- All reasonable costs, such as judicial, extrajudicial and execution costs, incurred to obtain the amounts due by the Client shall be borne by the Client.
ARTICLE 11. | LIABILITY AND INDEMNIFICATION
- The Client shall bear the damage caused by inaccuracies or incompleteness in the information they provided for the execution of the Agreement, any other failure in the fulfilment of the obligations of the Client under the law or the Agreement, as well as any other circumstance that cannot be attributed to Wellywoofandco.
- Wellywoofandco shall never be liable for indirect damages, including but not limited to losses, lost profits, personal injury and damage due to business interruption. Without prejudice to the provisions of the remainder of these general conditions and in particular paragraph 4, Wellywoofandco shall only be liable towards the Client for direct damages suffered by the Client as a result of an attributable failure of Wellywoofandco to fulfil their obligations under the Agreement. An attributable shortcoming must be understood to mean a shortcoming that a professional acting with due care can and should avoid, all this with due observance of normal caution and the professional knowledge and means required for the performance of the Agreement. Direct damage is exclusively understood to include:
- the reasonable costs of establishing the cause and the volume of the damage, in so far as the establishment relates to damage that qualifies for compensation within the meaning of these general terms and conditions;
- any reasonable costs incurred in order for the deficient performance of Wellywoofandco to comply with the Agreement, as far as these can be attributed to Wellywoofandco;
- reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have resulted in limiting the direct damage within the meaning of these General Terms and Conditions.
- If Wellywoofandco is liable for any damages, Wellywoofandco shall at all times be entitled to recover such damages. The Client must give Wellywoofandco the opportunity to do so, failing which any liability of Wellywoofandco in this respect shall lapse.
- The liability of Wellywoofandco is limited to a maximum of replacement of the Products to which the liability of Wellywoofandco relates. If replacement is not possible, the liability of Wellywoofandco shall be limited to a maximum of the invoice value of the Agreement, or at least that part of the Agreement to which the liability of Wellywoofandco relates.
- Without prejudice to the expiry periods as described in Article 7, the limitation period for all legal claims and defenses against Wellywoofandco shall be one year. In deviation from the previous sentence, legal claims and defences to which Consumers are entitled that are based on facts that would justify the claim that a consumer purchase is not in accordance with the Agreement, will lapse after two years.
- The Client indemnifies Wellywoofandco against any claims from third parties that suffer damage in connection with the execution of the Agreement and which are not attributable to Wellywoofandco.
- In the case of a consumer purchase, the limitations in this article do not extend beyond what is permitted under Article 7:24 paragraph 2 of the Dutch Civil Code.
ARTICLE 12. | RETENTION OF TITLE
- All Products delivered by Wellywoofandco shall remain their property until the Client has properly fulfilled all payment obligations under the relevant Agreement.
- The Client is prohibited from selling, pledging or encumbering in any other way the Products that are subject to retention of title.
- If third parties seize the Products that are subject to the retention of title, or wish to establish or assert rights to them, the Client must notify Wellywoofandco as soon as possible.
- The Client gives unconditional permission to Wellywoofandco or third parties designated by Wellywoofandco to enter all those places where the Products subject to retention of title are located. If the Client is in default, Wellywoofandco shall be entitled to take back the Products referred to. All reasonable costs related to this shall be borne by the Client.
- If, after the Products have been delivered to the Client by Wellywoofandco, the Client has fulfilled their obligations, the retention of title in respect of these Products shall revive if the Client fails to fulfil their obligations under a subsequent Agreement.
ARTICLE 13. | GENERAL COMPLAINT POLICY
- Complaints relating to the execution of the Agreement must, without prejudice to the provisions of Article 7, be made within a reasonable period of time after the Client has provided a complete and clearly described description of the grounds for the complaint, by e-mail (firstname.lastname@example.org) to Wellywoofandco.
- Complaints submitted to Wellywoofandco shall be answered within a period of seven days after receipt. If a complaint requires a longer processing time, a reply will be sent within seven days with an acknowledgement of receipt and an indication of when the Client can expect a more detailed reply.
- If, within the framework of a Distance Contract, the complaint cannot be resolved by mutual agreement, the Consumer may submit the dispute to the Disputes Committee via the ODR platform (ec.europa.eu/consumers/odr/).
ARTICLE 14. | FINAL PROVISIONS
- Wellywoofandco is entitled to transfer their rights and obligations under the Agreement to a third party.
- Each Agreement and all legal relationships arising therefrom between the Parties shall be governed exclusively by Dutch law.
- Parties will not appeal to the court until they have made every effort to settle the dispute in mutual consultation.
- To the extent that the law does not imperatively deviate therefrom under the given circumstances of the case, only the competent court within the district of the registered office of Wellywoofandco shall be designated to take cognizance of any legal disputes between the Parties.
- In the event that these general terms and conditions are available in multiple languages, the Dutch language version shall always be decisive for the interpretation of the clauses contained therein.