Terms and conditions - AutoPerforma

1. Definitions

In these terms and conditions the following definitions apply:

Consumer: a natural person not dealing on behalf of a company or profession.
Trader: a natural or legal person who offers products, (access to) digital content and/or services to consumers from a distance.
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.
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.
Withdrawal period: the period in time during which the consumer can execute the right of withdrawal.
Right of withdrawal: the possibility for a consumer to cancel a distance contract within the withdrawal period.
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.
Day: calendar day.
Extended duration transaction: a distance agreement related to a series of products and services of which the delivery obligation and the purchasing are spread over a period of time.
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.
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.

2. Trader identity

Registered name: AutoPerforma
Address: Tramstraat 9a, 5611 CM, The Netherlands
Phone number: +31 (0)645424171, weekdays from 09.00 – 18.00 hours (CET)
E-mail address: info@autoperforma.com
Website address: www.autoperforma.com
Chamber of Commerce number: 17242522 (registered at the Dutch Chamber of Commerce located in Eindhoven, the Netherlands)
VAT identification number: NL 162567741 B01

3. Applicability

3.1 These general terms and conditions apply to every offer made by the trader and to every distance contract that has been realized between the trader and the consumer.

3.2 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.

3.3 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 medium. 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.

3.4 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 consumer can always invoke the applicable condition that is most favorable to him in the event of incompatible general terms and conditions.

4. The offer

4.1 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.

4.2 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.

4.3 Every offer contains information that makes it clear to the consumer what rights and obligations are related to the acceptance of the offer. This concerns in particular:

price including value added taxes
costs and method of delivery
additional costs (administration, import or export fees)
the method of payment

5. The contract

5.1 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.

5.2 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.

5.3 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.

5.4 The trader may obtain information – within statutory frameworks – about the consumer’s ability to fulfil 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.

5.5 The trader will send to the consumer, at the latest when delivering the ordered 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.

the office address of the trader’s business location where the consumer can file complaints;
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;
information on guarantees and existing after-sales service;
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;
the requirements for terminating the contract, if the duration of the contract exceeds one year or if it is indefinite;
if the consumer has a right of withdrawal, the model form for right of withdrawal.

6. Right of Withdrawal

6.1 After the purchase of the products the consumer has the right to dissolve the contract, without any given reasons, during a withdrawal period of 14 days.

6.2 This withdrawal period starts 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:

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.
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;
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.

6.3 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.

6.4 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.

7. Withdrawal Costs

7.1 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.

7.2 As quickly as possible, but no later than 14 days after the day of reporting as referred to in the previous paragraph, the consumer shall return the product to the trader. 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.

7.3 The consumer returns the product with all relevant accessories, in the original state and if reasonably possible in the original packaging, and in accordance with the reasonable and clear instructions provided by the trader.

7.4 The risk and the burden of proof for exercising the right of withdrawal correctly and in time rest upon the consumer.

7.5 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.

7.6 If a consumer exercises his right of withdrawal, all supplementary agreements between the consumer and the trader are legally dissolved.

8. Consumers’ obligations during the withdrawal period

8.1 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 quality 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, before having purchased the product.

8.2 The consumer is only liable for the product’s devaluation that is a consequence of his handling of the product other than is permitted as described in the previous paragraph.

8.3 Upon deciding the consumer does not want to retain the ordered products and therefore chooses to execute the right of withdrawal, the consumer is not allowed to use or make use of the ordered products in any way.

8.4 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.

9. Traders’ obligations in case of withdrawal

9.1 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.

9.2 The trader reimburses the consumer with all payments, including any delivery costs the trader charged for the returned product, upon receiving the returned products and after confirming the returned products are in the original state and include all the relevant accessories, as stated in paragraph 7.3.

9.3 The trader reimburses the client as soon as possible, but no later than 14 days after receiving the returned products.

9.4 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.

10. Precluding the right of withdrawal

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

10.1 Returned products that have been damaged or modified by the consumer during the withdrawal period. The point of departure here is that the returned products should be in such a condition that they can be offered for sale again without having to undergo repairs or refitting.

10.2 Products 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.

10.3 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.

10.4 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.

10.5 Products subject to rapid decay or with a limited shelf-life.

10.6 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.

10.7 Products that, due to their nature, have been irretrievably mixed with other products.

11. Pricing

11.1 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.

11.2 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.

11.3 Price increases within 3 months after the contract was concluded are only permitted if they are the result of statutory regulations or stipulations.

11.4 Price increases more than 3 months after the contract was concluded are only permitted if the trader stipulated as much and:

if they are the result of statutory regulations or stipulations; or
if the consumer is authorized to terminate the contract on the day on which the price increase takes effect.

11.5 Prices stated in offers of products or services include VAT.

12. Conformity and guarantees

12.1The trader guarantees that the products 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.

12.2 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.

12.3 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.

12.4 In accordance with EU directive 1999/44/EG on certain aspects of the sale of consumer goods and associated guarantees, the following conditions apply regarding the consumer’s entitlement to a guarantee;

If a product is not in conformity with the contract, then there is a defect. If this defect occurs within 2 years after the purchase, in Europe, the consumer is entitled to a guarantee. This means that the seller must repair or replace the product at no charge. This must be done within a reasonable time and without causing the consumer serious inconvenience.
The consumer is only entitled to a guarantee if the defect occurred through no fault of the consumer’s own. When this occurs within 6 months after purchase, it is assumed that the defect existed at the time of purchase. This is also called the “conformity requirement”. If the trader can prove that the defect was caused by the consumer, this does not apply.
If the defect occurs after 6 months after purchase but within 24 months the consumer must prove that the defect occurred through no fault of the consumer’s own.

13. Delivery and implementation

13.1 The trader will take the greatest possible care when receiving and implementing orders for products and when assessing applications for the provision of services.

13.2 The place of delivery is deemed to be the address that the consumer makes known to the trader.

13.3 Taking into consideration that which is stated in article 4 of these general terms and conditions, the company will implement accepted orders with efficient expedition, though 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 this case, the consumer has a right to dissolve the contract free of charge and a right to possible damages.

13.4 Following dissolution in accordance with the previous paragraph, the trader refunds the consumer immediately the sum paid.

13.5 The risk of damage and/or loss of products in transit 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. In case of loss or damage of the ordered products the trader shall provide the consumer with a substitute product, free of charge.

14. Extended duration transactions

14.1 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.

14.2 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.

14.3 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.

14.4 A fixed-term contract that was concluded for the regular supply of products or services may not be automatically prolonged or renewed for a fixed period of time.

14.5 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.

14.6 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.

15. Payment

15.1 As far as no other date is stipulated in the contract or supplementary conditions, sums payable by the consumer should be paid 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.

15.2 When selling products to consumers, the general terms and conditions may never stipulate an advance payment in excess of 50%. 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.

15.3 The consumer is obliged to report immediately to the trader any inaccuracies in payment data provided or stated.

15.4 If a consumer fails to fulfil 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 fulfil 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 extra judicial 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 favourable to the consumer.

16. Complaints

16.1 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.

16.2 A consumer who has discovered shortcomings in the implementation of a contract must submit any complaints to the trader without delay, in full and with clear descriptions.

16.3 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.

16.4 A complaint that cannot be solved in joint consultation within a reasonable period of time, or within 3 months after it was submitted, becomes a dispute that is subject to the disputes settlement scheme.

17. Disputes

17.1 Contracts entered into between a trader and a consumer and which are subject to these general terms and conditions are subject to Dutch law.

17.2 Disputes between a consumer and a trader over the conclusion or exercising of contracts relating to products and services to be supplied by this trader can be submitted to the competent court in Amsterdam.

17.3 The dispute should be submitted to the competent court, in writing, at the latest by three months after the dispute arose.

18. Additional or different stipulations

18.1 Additional stipulations or stipulations that differ from these general terms and conditions, may not be detrimental to the consumer and should be recorded in writing, or in such a way that consumers can store them in a readily accessible manner on a durable medium.

Additional Terms and Conditions for the Autoperforma webshop

1. Applicability

1.1 These General Terms and Conditions (hereinafter: “the Terms and Conditions”) apply in addition to the General Terms and Conditions and apply to all of Autoperforma’s offers made via the website www.autoperforma.com (hereinafter: “the Website”) and to all distance contracts (hereinafter: “the Contract”) that are then concluded via the Website between Autoperforma (hereinafter also to be referred to as: “we”/”us”) and a consumer, i.e. a natural person not acting in the practice of a profession or operation of a business (hereinafter also to be referred to as: “you”/”your”).

1.2 Before the Contract is concluded, these Terms and Conditions are made available to you electronically in such a way that they can easily be printed and saved on a permanent data carrier by you. You can also consult these Terms and Conditions and the General Terms on the Website at all times.

1.3 The products offered on our Website are not available in all countries. Current information on the countries and areas in which our products are available will be stated on our Website. This information will also be stated during the ordering process on our Website before you place the order.

2. Prices and delivery costs

Any delivery and/or shipping costs applicable to your order are clearly stated before the Contract is concluded and will be confirmed in the Order Confirmation.

3. Conclusion of contract

3.1 The Contract is concluded when you click on the button “place order” at the end of the ordering process.

3.2 After completion of your order you will receive an Order Confirmation from us by email, which includes an overview of the products you ordered, the purchase amount of your order and any delivery and/or shipping costs (including VAT), the payment method chosen by you and the delivery method. As soon as your order in our warehouse is ready to be sent you will receive a Shipping Confirmation from us.

4. Cancelling or withdrawing your order

4.1 As long as you have not yet received a Shipping Confirmation from us, you can cancel your order. You can do this for example by filling in the contact form on our Website, or by sending an email to info@autoperforma.com, in which you clearly state that you are cancelling your order, while including your order number. You will receive an email from us confirming the cancellation. If you have canceled your order before receiving the Shipping Confirmation, we will fully repay you the amounts you have already paid, including the costs and shipping costs paid by you, within 14 days after cancellation and no costs will be charged to you.

4.2 You can use your right of withdrawal as described in Article 6 of the General Terms and Conditions by filling in and return the Model form for withdrawal on our Website. We will then promptly send you a confirmation of receipt of your withdrawal by email.

4.3 If you use your right of withdrawal, the costs for returning the product will be for your account.

5. Delivery and retention of title

5.1 Orders are delivered at the delivery address provided by you at the latest within 14 days after you have placed your order, unless a longer delivery period has been agreed. Our carrier does not deliver on Saturdays and Sundays.

5.2 If delivery of a product ordered by you proves to be impossible, we will make an effort to offer an alternative product of comparable or higher quality to you. You are not obliged to take up this offer and you can choose instead to dissolve the Contract at no cost, after which we will fully repay you the amounts already paid by you within 14 days.

5.3 If our carrier is not able to deliver the order at the delivery address provided by you after two attempts, our carrier will leave a message stating where the package is located and in what way and within what period you can pick up the order.

5.4 If the order can not be delivered we reserve the right to ship the order back to us. Upon the return of your order we will refund you your purchase price, minus the costs for the return shipment.

5.5 Delivery has taken place and the products are deemed to be delivered after receipt of the goods at the agreed delivery address is signed for.

5.6 Ownership of the products will only transfer to you when we have received full payment of all amounts owed regarding the products. The risk of the products transfers to you at the time of delivery.

6. Payment

If you pay by credit card we will perform a pre-authorisation based on your credit card after receiving your order, in order to guarantee whether there is sufficient balance to complete the transaction. The purchase amount will not be debited from your credit card before your order has been sent from our warehouse.

7. Conformity and guarantee

7.1 The provisions of this article do not affect the rights you have pursuant to the Dutch statutory regulations regarding conformity and guarantee and the General Terms and Conditions.

7.2 We guarantee that the products fulfil the Contract and have the characteristics you can expect with normal use. However, you must account for the fact that the products are subject to normal wear and tear that can occur upon use.

7.3 “Normal use” as referred to above includes use in accordance with the reasonable instructions for use, maintenance and installation that have been delivered along with the product. Normal use does not include misuse, neglect, faulty maintenance or installation or damage by repairs carried out by a third party, dismantling or wrong assembly or installation of a part of a third party that is not compatible with the product.

8. Communication

8.1 When you use our Website, any communication we send you will mainly take place electronically and we will usually contact you by email in connection with the performance of the Contract or to provide you with information regarding the performance of the Contract. If you have not received our emails, we recommend that you first check whether our email has not ended up in your junk mail folder.

8.2 All notices you send us must preferably be made via email.

9. Changes to these additional Terms and Conditions

Any changes to these additional Terms and Conditions only enter into force after these have been published and apply only to Contracts that have been concluded after these changes have entered into force, on the understanding that for changes that take place during the term of an offer, the most favourable provision will apply to you.

10. Complaints

10.1 If you have a complaint about a product we have delivered or about our services, you can submit the complaint by sending an email to info@autoperforma.com. We will respond to the substance of the complaint at the latest within 14 days after having received the complaint and we will make an effort to solve your complaint in consultation with you as well as possible. If a complaint demands a foreseeable longer processing time, we will send a confirmation of receipt of your complaint and an indication of when you may expect a more in-depth answer within 14 days.

10.2 If the complaint cannot be solved in mutual consultation, a dispute arises that is subject to the dispute settlement rules as included in the General Terms and Conditions.

Appendix I: Model form for right of withdrawal

Please use this form to execute your right of withdrawal.

To:

Autoperforma

Tramstraat 9a

5611 CM Eindhoven

The Netherlands

I herewith inform you that, in respect of our contract regarding the sale of the following products;

…

I wish to exercise the right of withdrawal for these products;

ordered on: …

received on: …

by: …

Name: …

Address : …

Date (date of submission): …

Signature (only if this form is submitted on paper): …