Terms of service

These General Terms and Conditions have been established in consultation with the Consumers' Association within the framework of the Coordination Group for Self-Regulation Consultation (CZ) of the Social and Economic Council and shall enter into force on June 1, 2014.

Table of Contents

Article 1 - Definitions
Article 2 - Identity of the entrepreneur
Article 3 - Applicability
Article 4 - The offer
Article 5 - The agreement
Article 6 - Right of withdrawal
Article 7 - Consumer's obligations during the cooling-off period
Article 8 - Exercise of the right of withdrawal by the consumer and the costs thereof
Article 9 - Entrepreneur's obligations in case of withdrawal
Article 10 - Exclusion of the right of withdrawal
Article 11 - The price
Article 12 - Performance and additional warranty
Article 13 - Delivery and execution
Article 14 - Long-term transactions: duration, termination, and extension
Article 15 - Payment
Article 16 - Complaints procedure
Article 17 - Disputes
Article 18 - Additional or deviating provisions
Article 19 - Amendment of the General Terms and Conditions

Article 1 - Definitions
In these terms and conditions, the following definitions apply:
1. Supplementary agreement: an agreement whereby the consumer acquires products, digital content, and/or services in connection with a distance contract and these goods, digital content, and/or services are supplied by the entrepreneur or by a third party on the basis of an agreement between that third party and the entrepreneur;
2. Cooling-off period: the period within which the consumer may exercise the right of withdrawal;
3. Consumer: the natural person who does not act for purposes relating to his trade, business, craft, or profession;
4. Day: calendar day;
5. Digital content: data produced and delivered in digital form;
6. Long-term contract: an agreement that concerns the regular delivery of goods, services, and/or digital content over a certain period;
7. Durable medium: any tool - including email - that enables the consumer or entrepreneur to store information addressed personally to them in a way that allows future access or use for a period tailored to the purpose for which the information is intended, and allows the unchanged reproduction of the stored information;
8. Right of withdrawal: the consumer's option to withdraw from the distance contract within the cooling-off period;
9. Entrepreneur: the natural or legal person who offers products, (access to) digital content, and/or services to consumers remotely;
10. Distance contract: an agreement concluded between the entrepreneur and the consumer as part of an organized system for distance selling of products, digital content, and/or services, where the contract is concluded exclusively or partly through one or more means of remote communication up to and including the conclusion of the contract;
11. Model withdrawal form: the European model withdrawal form included in Appendix I of these terms and conditions; Appendix I does not need to be provided if the consumer does not have the right of withdrawal regarding their order;
12. Means of remote communication: means that can be used to conclude a contract without the consumer and entrepreneur being simultaneously present in the same space.

Article 2 - Identity of the entrepreneur
Entrepreneur's name: VivAir B.V.
Trading under the name/names:
- VivAir
Business address:
Pettelaarpark 84, 5216 PP 'S-HERTOGENBOSCH
Email address: website@vivair.nl

Chamber of Commerce number: 90457439

VAT identification number: 865322363B01

Article 3 - Applicability

1. These general terms and conditions apply to every offer made by the entrepreneur and to every distance contract concluded between entrepreneur and consumer.
2. Before the distance contract is concluded, the text of these general terms and conditions will be made available to the consumer. If this is reasonably not possible, the entrepreneur will indicate before the conclusion of the distance contract how the general terms and conditions can be inspected at the entrepreneur's premises and that they will be sent free of charge upon request of the consumer as soon as possible.
3. If the distance contract is concluded electronically, in deviation from the previous paragraph and before the conclusion of the distance contract, the text of these general terms and conditions can be made available to the consumer electronically in such a way that the consumer can easily store them on a durable medium. If this is reasonably not possible, it will be indicated before the conclusion of the distance contract where the general terms and conditions can be accessed electronically and that they will be sent to the consumer electronically or by other means free of charge upon request.
4. In the event that, in addition to these general terms and conditions, specific product or service conditions also apply, paragraphs two and three shall apply mutatis mutandis, and in case of conflicting conditions, the consumer can always invoke the applicable provision that is most favorable to them.

Article 4 - The offer

1. If an offer has a limited validity period or is made under conditions, this will be explicitly stated in the offer.
2. The offer includes a complete and accurate description of the products, digital content, and/or services offered. The description is sufficiently detailed to enable the consumer to make a proper assessment of the offer. If the entrepreneur uses images, these are a true representation of the offered products, services, and/or digital content. Obvious errors or mistakes in the offer do not bind the entrepreneur.
3. Every offer contains such information that it is clear to the consumer what rights and obligations are attached to the acceptance of the offer.

Article 5 - The agreement

1. The agreement is concluded, subject to the provisions of paragraph 4, at the moment of acceptance by the consumer of the offer and compliance with the conditions laid down.
2. If the consumer has accepted the offer electronically, the entrepreneur confirms receipt of the acceptance of the offer immediately electronically. As long as the receipt of this acceptance has not been confirmed by the entrepreneur, the consumer may dissolve the agreement.
3. If the agreement is concluded electronically, the entrepreneur takes appropriate technical and organizational measures to secure the electronic transfer of data and ensures a secure web environment. If the consumer can pay electronically, the entrepreneur will observe appropriate security measures for this purpose.
4. Within the legal framework, the entrepreneur can - inform himself whether the consumer can meet his payment obligations, as well as all those facts and factors that are important for a responsible conclusion of the distance contract. If, based on this investigation, the entrepreneur has good reasons not to enter into the agreement, he is entitled to refuse or attach special conditions to an order or application with reasons.
5. At the latest upon delivery of the product, service, or digital content to the consumer, the entrepreneur will send the following information, in writing or in such a way that it can be stored by the consumer in an accessible manner on a durable medium:

a. the visiting address of the entrepreneur's establishment where the consumer can address complaints;
b. the conditions under which and the manner in which the consumer can exercise the right of withdrawal, or a clear statement regarding the exclusion of the right of withdrawal;
c. information about guarantees and existing service after purchase;
d. the price including all taxes of the product, service, or digital content; if applicable, the costs of delivery; and the method of payment, delivery, or execution of the distance contract;
e. the requirements for terminating the agreement if the agreement has a duration of more than one year or is of indefinite duration;
f. if the consumer has a right of withdrawal, the model withdrawal form.

6. In the case of a long-term transaction, the provision in the previous paragraph applies only to the first delivery.

Article 6 – Right of withdrawal

Regarding products:

1. The consumer has the right to terminate a contract for the purchase of a product within a cooling-off period of 14 days without giving any reason. The entrepreneur may ask the consumer for the reason for withdrawal, but cannot compel the consumer to provide reasons.
2. The cooling-off period mentioned in paragraph 1 starts from the day after the consumer, or a third party designated by the consumer other than the carrier, has received the product, or:

a. if the consumer has ordered multiple products in the same order: the day on which the consumer, or a third party designated by the consumer, receives the last product. The entrepreneur may refuse an order of multiple products with different delivery times, provided this is clearly communicated to the consumer prior to the ordering process.
b. if the delivery of a product consists of several shipments or parts: the day on which the consumer, or a third party designated by the consumer, receives the last shipment or part;
c. for agreements involving regular delivery of products over a specified period: the day on which the consumer, or a third party designated by the consumer, receives the first product.

Regarding services and digital content not supplied on a tangible medium:

3. The consumer has the right to terminate a service agreement and an agreement for the supply of digital content not supplied on a tangible medium within 14 days without giving any reason. The entrepreneur may ask the consumer for the reason for withdrawal, but cannot compel the consumer to provide reasons.
4. The cooling-off period mentioned in paragraph 3 starts from the day following the conclusion of the agreement.

Extended cooling-off period for products, services, and digital content not supplied on a tangible medium in case of failure to inform about the right of withdrawal:

5. If the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal or the model withdrawal form, the cooling-off period expires twelve months after the end of the originally established cooling-off period in accordance with the preceding paragraphs of this article.
6. If the entrepreneur provides the information referred to in the preceding paragraph to the consumer within twelve months after the start date of the original cooling-off period, the cooling-off period expires 14 days after the day on which the consumer receives that information.

Article 7 - Consumer's obligations during the cooling-off period

1. During the cooling-off period, the consumer shall handle the product and packaging with care. He shall only unpack or use the product to the extent necessary to establish the nature, characteristics, and functioning of the product. The basic principle here is that the consumer may only handle and inspect the product as he would be allowed to do in a store.
2. The consumer is liable only for any diminished value of the product resulting from handling the product beyond what is necessary to establish its nature, characteristics, and functioning as permitted in paragraph 1.
3. The consumer is not liable for any diminished value of the product if the entrepreneur has not provided him with all legally required information about the right of withdrawal before or at the conclusion of the agreement.

Article 8 - Exercise of the right of withdrawal by the consumer and costs thereof

1. If the consumer exercises his right of withdrawal, he shall notify the entrepreneur of this within the cooling-off period by means of the model withdrawal form or in another unequivocal manner.
2. The consumer shall return the product as soon as possible, but no later than 14 days after the day following the notification referred to in paragraph 1, or he hands it over to (a representative of) the entrepreneur. This is not necessary if the entrepreneur has offered to collect the product himself. The consumer has observed the return period in any case if he returns the product before the cooling-off period has expired.
3. The consumer shall return the product with all accessories supplied, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by the entrepreneur.
4. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lie with the consumer.
5. The consumer shall bear the direct costs of returning the product. If the entrepreneur has not informed the consumer that he has to bear these costs or if the entrepreneur indicates that he will bear the costs himself, the consumer does not have to bear the costs for returning the product.
6. If the consumer withdraws from a service contract or a contract for the supply of water, gas, or electricity, or for district heating, which has not been prepared for sale in a limited volume or quantity, before the end of the cooling-off period and after explicit consent to begin the performance of the service or delivery of water, gas, electricity, or district heating during the cooling-off period, the consumer shall owe the entrepreneur an amount proportional to the part of the contract that the entrepreneur has fulfilled at the time of withdrawal, compared to the full performance of the contract.
7. The consumer shall not bear costs for the execution of services or the supply of water, gas, electricity, or district heating, which are not supplied in a limited volume or quantity ready for sale, if:

a. the entrepreneur has not provided the consumer with the legally required information about the right of withdrawal, the reimbursement of costs upon withdrawal, or the model withdrawal form; or
b. the consumer has not expressly requested the commencement of the execution of the service or the supply of gas, water, electricity, or district heating during the cooling-off period.

8. The consumer shall not bear costs for the full or partial supply of non-tangible digital content, if:

a. he has not agreed beforehand to start delivery before the end of the cooling-off period;
b. he has not acknowledged losing his right of withdrawal by giving his consent; or
c. the entrepreneur has failed to confirm this statement from the consumer.

9. If the consumer exercises his right of withdrawal, all additional agreements shall be dissolved automatically.

 

Article 9 - Obligations of the entrepreneur in case of withdrawal

1. If the entrepreneur enables the consumer to make the notification of withdrawal electronically, he shall promptly send a confirmation of receipt upon receiving this notification.
2. The entrepreneur shall reimburse all payments made by the consumer, including any delivery costs charged by the entrepreneur for the returned product, promptly and no later than 14 days from the day on which the consumer notifies him of the withdrawal. Unless the entrepreneur offers to collect the product himself, he may withhold the reimbursement until he has received the product or until the consumer has provided proof of returning the product, whichever is earlier.
3. The entrepreneur shall use the same means of payment for reimbursement that the consumer used, unless the consumer agrees to a different method. The reimbursement shall be free of charge for the consumer.
4. If the consumer chose a more expensive method of delivery than the cheapest standard delivery, the entrepreneur is not obliged to refund the additional costs for the more expensive method.

Article 10 - Exclusion of the right of withdrawal

The entrepreneur may exclude the following products and services from the right of withdrawal, but only if the entrepreneur clearly stated this in the offer, at least in a timely manner before concluding the contract:

1. Products or services whose price is dependent on fluctuations in the financial market that the entrepreneur cannot control and which may occur within the withdrawal period.
2. Contracts concluded at a public auction. A public auction means a sales method where products, digital content, and/or services are offered by the entrepreneur to the consumer who is personally present or has the opportunity to be personally present at the auction, conducted under the supervision of an auctioneer, and where the successful bidder is obligated to purchase the products, digital content, and/or services.
3. Service contracts, after the complete performance of the service, but only if:

a. the performance began with the consumer's express prior consent; and
b. the consumer has acknowledged that he loses his right of withdrawal once the entrepreneur has fully performed the contract.

4. Package holidays as referred to in Article 7:500 of the Civil Code and contracts for passenger transport;
5. Service contracts for the provision of accommodation, if a specific date or period of performance is provided for in the contract and other than for residential purposes, goods transport, car rental services, and catering;
6. Contracts relating to leisure activities, if a specific date or period of performance is provided for in the contract;
7. Products made according to the consumer's specifications that are not prefabricated and that are manufactured based on an individual choice or decision of the consumer, or that are clearly intended for a specific person;
8. Products that spoil quickly or have a limited shelf life;
9. Sealed products that are not suitable for return due to health protection or hygiene reasons and whose seal has been broken after delivery;
10. Products that are inseparably mixed with other products after delivery due to their nature;
11. Alcoholic beverages where the price was agreed upon at the time of the contract but which can only be delivered after 30 days, and whose actual value depends on fluctuations in the market that the entrepreneur cannot control;
12. Sealed audio, video recordings, and computer software where the seal has been broken after delivery;
13. Newspapers, periodicals, or magazines, with the exception of subscriptions to them;
14. Delivery of digital content not supplied on a tangible medium, but only if:

a. execution has begun with the express prior consent of the consumer; and
b. the consumer has acknowledged that he thereby loses his right of withdrawal.

Article 11 - The price

1. During the validity period mentioned in the offer, the prices of the products and/or services offered will not be increased, except for price changes due to changes in VAT rates.
2. Contrary to the previous paragraph, the entrepreneur may offer products or services with prices that are subject to fluctuations in the financial market and over which the entrepreneur has no influence. These fluctuations and the fact that any prices mentioned are indicative will be stated in the offer.
3. Price increases within 3 months after the conclusion of the contract are only permitted if they result from statutory regulations or provisions.
4. Price increases from 3 months after the conclusion of the contract are only permitted if the entrepreneur has stipulated this and:

a. these are the result of statutory regulations or provisions; or
b. the consumer has the right to terminate the contract from the day on which the price increase takes effect.
5. The prices mentioned in the offer of products or services include VAT.

Article 12 - Performance of the contract and additional warranty

1. The entrepreneur guarantees that the products and/or services comply with the contract, the specifications mentioned in the offer, the reasonable requirements of soundness and/or usability, and the legal provisions and/or government regulations existing on the date of conclusion of the contract. If agreed, the entrepreneur also guarantees that the product is suitable for normal use other than for normal use.
2. An additional guarantee provided by the entrepreneur, his supplier, manufacturer, or importer never limits the legal rights and claims that the consumer can assert against the entrepreneur based on the contract if the entrepreneur fails to fulfill his part of the contract.
3. An additional guarantee means any commitment by the entrepreneur, his supplier, importer, or manufacturer to grant the consumer certain rights or claims that go beyond what he is legally required to do in case of his failure to fulfill his part of the contract.

Article 13 - Delivery and performance

1. The entrepreneur shall exercise the utmost care when receiving and executing product orders and assessing requests for the provision of services.
2. The consumer's address as disclosed to the entrepreneur shall be considered the place of delivery.
3. Subject to what is stipulated in Article 4 of these general terms and conditions, the entrepreneur shall fulfill accepted orders promptly and no later than within 30 days, unless a different delivery period has been agreed upon. If delivery is delayed or if an order cannot be executed or only partially executed, the consumer shall be informed of this no later than 30 days after placing the order. In such cases, the consumer has the right to dissolve the agreement at no cost and is entitled to any damages.
4. After dissolution in accordance with the previous paragraph, the entrepreneur shall refund the amount paid by the consumer without delay.
5. The risk of damage and/or loss of products shall be borne by the entrepreneur until the moment of delivery to the consumer or a designated representative previously made known to the entrepreneur, unless expressly agreed otherwise.

Article 14 - Long-term transactions: duration, termination, and extension

Termination:
1. The consumer may terminate an agreement concluded for an indefinite period and which involves the regular delivery of products (including electricity) or services at any time, subject to agreed termination rules and a notice period of up to one month.
2. The consumer may terminate an agreement concluded for a definite period and which involves the regular delivery of products (including electricity) or services at any time by the end of the agreed period, subject to agreed termination rules and a notice period of up to one month.
3. The consumer may terminate agreements referred to in the preceding paragraphs:

a. at any time without being restricted to termination at a specific time or during a specific period;
b. terminate them in the same manner as they were entered into;
c. always terminate them with the same notice period as stipulated by the entrepreneur for himself.

Extension:
4. An agreement concluded for a definite period and which involves the regular delivery of products (including electricity) or services may not be tacitly extended or renewed for a definite period.
5. Notwithstanding the previous paragraph, an agreement concluded for a definite period and which involves the regular delivery of daily, news, and weekly newspapers and magazines may be tacitly extended for a definite period of up to three months, provided that the consumer may terminate this extended agreement by the end of the extension period with a notice period of up to one month.
6. An agreement concluded for a definite period and which involves the regular delivery of products or services may only be tacitly extended for an indefinite period if the consumer may terminate it at any time with a notice period of up to one month. The notice period is a maximum of three months in case the agreement involves the regular delivery of daily, news, and weekly newspapers and magazines less than once a month.
7. An agreement with a limited duration for the regular delivery of daily, news, and weekly newspapers and magazines for the purpose of introduction (trial or introductory subscription) shall not be tacitly renewed and shall automatically end upon expiration of the trial or introductory period.

Duration:
8. If an agreement has a duration of more than one year, the consumer may terminate the agreement at any time after one year with a notice period of up to one month, unless fairness and reasonableness oppose termination before the end of the agreed duration.

Article 15 - Payment

1. Unless otherwise agreed in the contract or supplementary terms, amounts due from the consumer must be paid within 14 days after the commencement of the cooling-off period, or in the absence of a cooling-off period, within 14 days after the conclusion of the contract. In the case of a contract for the provision of services, this period begins on the day after the consumer receives confirmation of the contract.
2. In the sale of products to consumers, the consumer shall never be obliged to make an advance payment of more than 50% in the general terms and conditions. When an advance payment has been agreed upon, the consumer cannot assert any rights regarding the execution of the respective order or service(s) until the agreed advance payment has been made.
3. The consumer is obliged to promptly notify the entrepreneur of any inaccuracies in provided or stated payment details.
4. If the consumer does not fulfill his payment obligation(s) in a timely manner, he shall be in default after the entrepreneur has reminded him of the late payment and granted the consumer a period of 14 days to fulfill his payment obligations, and payment has not been made within this 14-day period, statutory interest on the amount due shall be owed and the entrepreneur shall be entitled to charge the consumer for extrajudicial collection costs incurred by him. These collection costs shall amount to a maximum of: 15% on outstanding amounts up to €2,500; 10% on the next €2,500; and 5% on the following €5,000, with a minimum of €40. The entrepreneur may deviate from these amounts and percentages in favor of the consumer.

Article 16 - Complaints procedure

1. The entrepreneur has a sufficiently disclosed complaints procedure and handles the complaint in accordance with this complaints procedure.
2. Complaints about the execution of the agreement must be submitted to the entrepreneur fully and clearly described within a reasonable time after the consumer has discovered the defects.
3. Complaints submitted to the entrepreneur shall be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the entrepreneur shall respond within the 14-day period with a notice of receipt and an indication of when the consumer can expect a more detailed response.
4. In any case, the consumer shall give the entrepreneur at least 4 weeks to resolve the complaint through mutual consultation. After this period, a dispute arises that is susceptible to dispute resolution.

Article 17 - Disputes

1. Dutch law exclusively applies to agreements between the entrepreneur and the consumer to which these general terms and conditions apply.
2. Disputes between the consumer and the entrepreneur concerning the conclusion or performance of agreements related to products and services provided or to be provided by this entrepreneur can be submitted by both the consumer and the entrepreneur to the Disputes Committee ODR (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=NL), subject to the provisions below.
3. A dispute shall only be considered by the Disputes Committee if the consumer has first submitted his complaint to the entrepreneur within a reasonable time.
4. If the complaint does not lead to a solution, the dispute must be submitted to the Disputes Committee in writing or in another form determined by the Committee no later than 12 months after the date on which the consumer submitted the complaint to the entrepreneur.
5. When the consumer wishes to submit a dispute to the Disputes Committee, the entrepreneur is bound by this choice. Preferably, the consumer notifies the entrepreneur of this choice first.
6. When the entrepreneur wishes to submit a dispute to the Disputes Committee, the consumer must indicate in writing within five weeks after a request made in writing by the entrepreneur whether he also wishes to do so or prefers to have the dispute resolved by the competent court. If the consumer does not notify his choice to the entrepreneur within the five-week period, the entrepreneur is entitled to submit the dispute to the competent court.
7. The Disputes Committee shall issue decisions under the conditions established in the regulations of the Disputes Committee ODR. The decisions of the Disputes Committee are made by binding advice.
8. The Disputes Committee shall not handle or discontinue the handling of a dispute if the entrepreneur has been granted suspension of payments, has been declared bankrupt, or has actually terminated its business activities before the dispute has been heard by the committee and a final decision has been rendered.
9. If, in addition to the ODR, another recognized dispute resolution body affiliated with the Financial Services Complaints Institute (Kifid) has jurisdiction, the ODR is preferably competent for disputes mainly concerning the method of distance selling or service provision.

Article 18 - Additional or Deviating Provisions

Additional or deviating provisions from these general terms and conditions may not be to the detriment of the consumer and must be recorded in writing or in such a way that they can be stored by the consumer in an accessible manner on a durable medium.

Article 19 - Amendment of the General Terms and Conditions

1. Changes to these terms and conditions are only effective after they have been published in an appropriate manner, provided that in the case of applicable changes during the term of an offer, the provision most favorable to the consumer shall prevail.

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Appendix I: Model Withdrawal Form

Model Withdrawal Form

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

a. To: [name of entrepreneur]
[geographical address of entrepreneur]
[fax number of entrepreneur, if available]
[email address or electronic address of entrepreneur]

b. I/We* hereby give notice that I/we* withdraw from our contract regarding
the sale of the following products: [specify product]*
the provision of the following digital content: [specify digital content]*
the performance of the following service: [specify service]*,

c. Ordered on*/Received on* [date of ordering services or receipt of products]
d. [Name of consumer(s)]
e. [Address of consumer(s)]
f. [Signature of consumer(s)] (only if this form is submitted on paper)

* Delete as appropriate