General terms and conditions
of the Dutch Jewellers and Clockworkers Association and the Gold and Silversmiths Association. (AV CZ/98, February 2010)
ARTICLE 1 – Definitions
In these General Terms and Conditions the following terms shall have the following meanings:
Consumer: Natural person who is not acting in the course of a profession or business and who enters into an Agreement with respect to a Product.
Entrepreneur: Natural or legal person who, as a member of NJU/VGZ, makes an offer or enters into an Agreement with regard to a Product.
Agreement: Agreement between the Entrepreneur and the Consumer concerning an Agreement for sale/purchase, assignment and/or contracting of work.
Distance Contract: An Contract that has been concluded via a system organised by the Entrepreneur, whereby only techniques for distance communication are used.
Product: Jewellery, gold and silver works, clocks, precious stones and related articles, as well as repair, design, manufacture and valuation of said goods.
ARTICLE 2 – Applicability
These General Terms and Conditions apply to all offers made and all Agreements concluded between the Entrepreneur and the Consumer.
ARTICLE 3 – The offer
1. The offer of the Entrepreneur shall preferably be made in writing or electronically and – if a period for acceptance has been set – shall be effective during the period specified therein.
2. The offer will be included in any case:
a. the description of the Product with any accessories
b. the price of the Product indicating whether the price is a fixed or a non-fixed agreed price
c. the delivery date and whether this date is a fixed or probable delivery date
ARTICLE 4 – The price
1. The price to be paid by the Consumer shall be agreed in advance, unless the parties explicitly agree otherwise. If a non-fixed price is agreed, the Entrepreneur shall indicate as accurately as possible on which factors the level of the price will depend.
2. If within three months after the conclusion of the Agreement, but still before delivery, a change occurs with regard to a price that has been agreed as fixed, this change will not affect the agreed price. The Consumer is entitled to dissolve the Agreement if after three months after the conclusion of the Agreement, but before delivery, the price is increased.
3. The second paragraph does not apply to price changes resulting from the law.
ARTICLE 5 – The Agreement
1. The Agreement is concluded by acceptance of the Entrepreneur’s offer.
2. Acceptance of the offer by the Consumer is only valid if this takes place within the set term. As long as the receipt of an electronic acceptance has not been confirmed by the Entrepreneur, the Consumer may dissolve the Agreement.
3. The Agreement should preferably be recorded in writing or electronically. A copy of a written Agreement must be provided to the Consumer. However, the absence of a written or electronic Agreement does not render this Agreement null and void.
ARTICLE 6 – Payment
1. Payment shall be made in cash upon delivery, unless agreed otherwise.
2. If payment in instalments has been agreed, the Consumer must pay in accordance with the instalments and percentages set out in the Agreement.
3. In the event of purchase, the Entrepreneur has the right to oblige the Consumer to pay a maximum of 30 per cent of the price in advance.
ARTICLE 7 – Delivery and delivery time
1. Delivery takes place by placing the Product in the possession of the Consumer.
2. Delivery time shall be understood to mean the term agreed in the Agreement. Parties may agree on a fixed or presumed delivery time.
3. If the presumed delivery time is exceeded, the Entrepreneur will still be given a certain period to deliver. This new delivery time shall not exceed 50% of the expected delivery time, unless the Consumer cannot reasonably be held to this new delivery time or the parties agree otherwise (preferably in writing).
4. If this new delivery time or the fixed agreed delivery time is exceeded, the Consumer – while retaining his right to performance – has the right to dissolve the Agreement without notice of default or judicial intervention and/or to claim damages.
ARTICLE 8 – Retention and transfer of title
The Entrepreneur remains the owner of the Product as long as the Consumer has not fully met his payment obligations, including what he may owe in connection with a failure to meet his obligations (in accordance with article 12 paragraph 2 of these general terms and conditions).
ARTICLE 9 – Conformity
1. The Entrepreneur guarantees that the delivered Product complies with the Agreement (conformity). In addition, the Entrepreneur guarantees that the Product possesses those characteristics which, all circumstances considered, are necessary for normal use, as well as for a special use insofar as this has been agreed.
2. The Entrepreneur guarantees that the work carried out by him complies with the Agreement and is carried out with good workmanship and the use of sound materials. 3. Minimal deviations with regard to design, sample and model cannot be invoked against the Entrepreneur.
ARTICLE 10 – Guarantees
1. In the case of sale/purchase and manufacture of jewellery, the Entrepreneur guarantees for a period of six months the absence of defects that become apparent after delivery. In the case of repairs, the Entrepreneur guarantees the absence of defects for a period of three months, unless otherwise agreed in writing, insofar as they relate to the parts repaired/replaced by him. The Consumer shall be entitled to replacement of defective parts free of charge within a reasonable period of time. In addition, the Consumer is entitled to free repair, compensation, price reduction and dissolution of the Agreement as granted to him by law.
2. The Entrepreneur is not liable for defects that have arisen after delivery of the Products as a result of inexpert use or lack of care on the part of the Consumer, or that are the result of changes that the Consumer or third parties have made to the Product. Nor is the Entrepreneur responsible for any damage resulting from these defects.
3. The Consumer fully retains his statutory warranty rights, regardless of the provisions in paragraphs 1 and 2 regarding the commercial guarantee issued by the Entrepreneur.
ARTICLE 11 – Non-performance of the Agreement
1. If one of the parties fails to fulfil an obligation under the Agreement, the other party may suspend the fulfilment of the obligation to the contrary. In the event of partial or improper performance, suspension is only permitted to the extent justified by the shortcoming.
2. The Entrepreneur has the right of retention if the Consumer fails to fulfil a due and payable obligation, unless the failure does not justify this retention.
3. If one of the parties fails to comply with the Agreement, the other party will be entitled to dissolve the Agreement, unless the failure does not justify the dissolution in view of its minor significance.
ARTICLE 12 – Late payment and establishment of security
1. The Consumer shall be in default from the expiry of the payment date. The Entrepreneur shall send a payment reminder after expiry of that date and shall give the Consumer the opportunity to pay within 14 days after receipt of this payment reminder.
2. If payment has still not been made after expiry of the period set in the payment reminder, the Entrepreneur is entitled to charge statutory interest from the expiry of the payment date, as well as reasonable collection costs and the costs of insurance and storage of the Product concerned.
3. The Consumer who hands over a Product to the Entrepreneur in execution of an Agreement hereby establishes a fist pledge on this Product in favour of the Entrepreneur as additional security for payment of all that he owes or will owe to the Entrepreneur.
4. If the Consumer has not fully met its payment obligations to the Entrepreneur in respect of the repair, maintenance, design or manufacture of a Product one year after the expiry of the payment date, the Entrepreneur shall be entitled to terminate the Agreement and to proceed to the public sale of the pledged property, unless the Consumer has submitted a complaint as described in Article 17 within the aforementioned term. The Entrepreneur will notify the Consumer;
a. if and insofar as the Consumer’s address details are known, twice by registered letter (at intervals of at least three months), or
b. if and insofar as the address details of the Consumer are not known or if the first registered letter has not reached the Consumer for whatever reason, via publication in a national or regional daily newspaper, summons the Consumer to pay as yet and announces a public sale of the Product if he is in default, after the period stated therein has expired.
5. The public sale may be replaced by a private sale if the expected cost of the public sale will exceed the estimated yield of the Products. If the proceeds of the sale of the pledged Product exceed the Entrepreneur’s claims, the surplus will, if possible, be made available to the Consumer.
ARTICLE 13 – Liability
1. The Entrepreneur is liable vis-à-vis the Consumer for damage resulting from a shortcoming attributable to the Entrepreneur or at the Entrepreneur’s risk, to persons in the Entrepreneur’s service, or to persons appointed by the Entrepreneur to carry out the work assigned by the Consumer.
2. The amount for which the Entrepreneur is liable to be held by the Consumer for Products he holds in his custody is limited to € 12,500.00 per Product or as much more as the liability insurance taken out by the Entrepreneur covers, except in cases of intent, gross negligence or the purchase of a Product.
3. The Entrepreneur draws the Consumer’s attention to the Entrepreneur’s limited liability in the event of repair and to the possibility of taking out additional insurance, unless it is clear that the value of the Product does not exceed the maximum amount for liability. The Consumer should inform the Entrepreneur as fully as possible about the specifications of the Product.
4. The Entrepreneur does not have to compensate the Consumer for damage resulting from force majeure, such as damage as a result of a robbery, burglary, shoplifting or fire and/or when the Consumer’s household effects or valuables insurance covers the damage. Any further payments of damage insurance policies to the Entrepreneur that relate to damage to a Consumer Product will be paid out by the Entrepreneur to this Consumer.
5. Emotional and/or immaterial damage is never eligible for compensation. 6. The Consumer is liable vis-à-vis the Entrepreneur for damage caused by a shortcoming attributable to the Consumer.
1. Before entering into the Distance Contract, the Entrepreneur must provide the Consumer with the following information in a clear and comprehensible manner:
a. the identity and geographical address of the Entrepreneur;
b. the main characteristics of the Products;
c. the price, including VAT, of the Products;
d. the costs of delivery, if any;
e. the method of payment, delivery and execution;
f. whether or not the cooling-off period of 7 working days applies to the Distance Contract;
g. the period for acceptance of the offer.
2. In addition to article 5 paragraph 2, the Consumer may dissolve the Distance Contract as long as the receipt of an electronic acceptance has not been confirmed by the Entrepreneur.
3. The Entrepreneur has a maximum delivery period of 30 days, counting from the day following the day on which the Consumer has placed his order. If this period is exceeded, the Consumer has the right to terminate the Distance Contract without further notice of default, unless the delay cannot be attributed to the Entrepreneur. The Consumer and the Entrepreneur may agree on a different term.
4. If the cooling-off period applies to this Distance Contract, the Consumer has the right to terminate the Distance Contract during 7 working days without giving reasons.
5. If the Products are unavailable, the Entrepreneur must inform the Consumer of this as soon as possible and refund any payments or payments made within 30 days at the latest, without prejudice to any rights to compensation.
If the Consumer and the Entrepreneur have agreed that a Product of equal quality and price may be delivered, the costs of returning the Product shall be borne by the Entrepreneur. This only applies in the event that the Consumer makes use of the dissolution during the cooling-off period. The Entrepreneur must inform the Consumer of this in a clear and comprehensible manner.
6. The Entrepreneur shall provide the Consumer with the following information in good time during performance and at the latest upon delivery:
a. the data mentioned under a up to and including g in paragraph 1 of this article;
b. in writing the requirements for exercising the right to terminate the Distance Contract and any associated financing during the 7 working days’ cooling-off period, stating in any case:
I the starting time and the duration of the cooling-off period that may be available to the Consumer;
II that if the Consumer makes use of the cooling-off period, a maximum of the costs of return shipment and delivery shall be borne by the Consumer;
III the information regarding the dissolution of the loan if the Consumer finances the purchase price with a loan from the Entrepreneur or from a third party on the basis of an Agreement between the Entrepreneur and that third party;
IV the visiting address of the establishment of the Entrepreneur;
V the details of any guarantee and after-sales service; VI the requirements for terminating the Agreement if the Agreements have a term of more than one year or an indefinite term.
7. If the Entrepreneur has not complied with his obligation to provide information or has not provided information in the correct form, the term of the cooling-off period is a maximum of 3 months and 7 working days. If the Entrepreneur still complies with the obligation to provide information during those 3 months, the term of 7 working days will commence on the day after the Entrepreneur has still complied with that obligation.
8. Returns are at the expense and risk of the Consumer. The Entrepreneur may not charge any other costs for the dissolution of the Agreement.
REPAIR, MAINTENANCE, DESIGN AND MANUFACTURE
ARTICLE 15 – Additional provisions for repair, maintenance, design and manufacture
In the case of an Agreement for repair, maintenance, design and manufacture of Products, the following shall apply:
1. The Consumer may, before or when concluding the Agreement, request a statement of the recommended price for the work, as well as the period within which the work will be carried out. The stated price and term are guidelines, unless the Consumer and the Entrepreneur have agreed on a fixed price and/or term.
2. The Entrepreneur is responsible for recording the Consumer’s telephone number and address details.
3. The Entrepreneur must contact the Consumer to discuss the additional costs if:
a. the target price of a Product exceeds € 100 and is exceeded or threatens to be exceeded by more than 10%, or
b. the target price of a Product does not exceed € 100 and is exceeded or threatens to be exceeded by more than € 20.
4. In that case, if this price increase takes place within three months after the Agreement has been concluded, the Consumer shall be entitled to terminate the Agreement subject to compensation from the Entrepreneur for the work already carried out by him in all reasonableness.
5. On request, an itemised invoice will be issued for the work carried out.
ARTICLE 16 – Intellectual property
The designs, drawings, calculations, descriptions, models and other performances produced or provided by an Entrepreneur and qualifying for them, remain the intellectual property of the Entrepreneur and/or the designer. Reproduction or publication of the aforementioned goods and/or Products without the prior consent of the Entrepreneur is not permitted.
COMPLAINTS AND DISPUTES
ARTICLE 17 – Complaints and conciliation arrangements
1. Complaints about the performance of the Agreement must be fully and clearly described, submitted in writing to the Entrepreneur in good time after the Consumer has discovered the defects. Failure to submit the complaint in good time may result in the Consumer losing his rights in this respect.
2. If the Entrepreneur’s handling of the complaint has not led to a satisfactory result for the Consumer, the Consumer may then, at his discretion, submit his complaint to the Jewellery and Clocks Mediation Office, PO Box 904, 2270 AX Voorburg, tel. 070 386 62 48 for a mediation attempt or submit his dispute to the Disputes Committee (see Article 18) within 6 weeks of the dispute arising. If the complaint has been submitted to the Mediation Office and the mediation attempt has not led to a satisfactory result for the Consumer, the Consumer may still submit his dispute to the Disputes Committee within 6 weeks after it has become clear that the mediation attempt has not led to a solution.
ARTICLE 18 – Settlement of disputes
1. Disputes between the Consumer and the Entrepreneur about the formation or performance of Agreements relating to services and/or Products to be delivered or to be delivered by this Entrepreneur can be brought by both the Consumer and the Entrepreneur before the Jewellery and Clockwork Disputes Committee, Bordewijklaan 46, P.O. Box 90600, 2509 LP The Hague (www.degeschillencommissie.nl).
2. A dispute will only be dealt with by the Disputes Committee if the Consumer has first submitted his complaint to the Entrepreneur and then possibly submitted it to the Mediation Office. A dispute arises if the consumer’s complaint has not been satisfactorily resolved by the proprietor and/or via the mediation attempt of the Jewellery and Clocks Mediation Agency.
3. If no use is made of mediation, the dispute must be submitted to the Disputes Committee no later than three months after it arose.
4. If the Consumer brings a dispute before the Disputes Committee, the Entrepreneur shall be bound by this choice. If the Entrepreneur wishes to bring a dispute before the Disputes Committee, he must ask the Consumer to state whether he agrees to this within five weeks. In doing so, the Entrepreneur must announce that, after the expiry of the aforementioned term, he will consider himself free to bring the dispute before the court.
5. The Disputes Committee pronounces its verdict with due observance of the provisions of the regulations that apply to it. Pursuant to those regulations, the decisions of the Disputes Committee are made by means of a binding advice. The regulations will be sent to you upon request. A fee is payable for the handling of a dispute. 6. Only the court or the above-mentioned Disputes Committee is authorized to take cognizance of disputes.
ARTICLE 19A – Performance bond NJU
1. The NJU guarantees that the Entrepreneur, a member of the NJU, will comply with the binding opinion within two months after it has been sent, unless the Entrepreneur decides in that time to submit the binding opinion to the court for review. The NJU’s guarantee will be revived if the binding opinion has been upheld after review by the court and the judgment establishing this has become final and conclusive.
2. For each binding advice, the NJU will pay the consumer an amount up to a maximum of € 10,000. In the event of amounts exceeding € 10,000 per binding advice, the maximum amount will be paid out and the NJU will offer to transfer the consumer’s claim to the NJU for the excess. The NJU will then request payment in its own name in order to satisfy the consumer.
3. The NJU will not provide a performance guarantee if, before the consumer has complied with the formal collection requirements stipulated for this purpose (payment of the complaint fee, return of the completed and signed questionnaire and any deposit), one of the following situations applies: – the member has been granted a moratorium; – the member has been declared bankrupt – the member’s business activities have in fact been terminated. The decisive factor for this situation is the date on which the business activities have been registered in the Trade Register or an earlier date, of which the NJU can demonstrate that the business activities have in fact been terminated.
ARTICLE 19B – Fulfilment guarantee VGZ
The members of VGZ must at the first request, to the satisfaction of the Foundation, provide a guarantee in the form of a sum of money for each dispute to be handled, either by providing a bank guarantee in accordance with the Foundation’s model or by paying the Foundation a sum of money that can serve as security for the fulfilment of the Committee’s statement(s) to the satisfaction of the Foundation. In the event of failure to do so, VGZ will, at the Foundation’s first request, terminate the entrepreneur’s membership of VGZ with immediate effect. Treatment of the dispute may be discontinued if the entrepreneur fails to provide security for compliance with the rulings.
ARTICLE 20 – Derogation
Individual deviations from these General Terms and Conditions must be recorded in writing or electronically between the Entrepreneur and the Consumer.
ARTICLE 21 – Amendment
The sector organisations NJU/VGZ will only amend these General Terms and Conditions in consultation with the Consumers’ Association.
ARTICLE 22 – Corresponding application to non-consumers
1. All provisions contained in these General Terms and Conditions shall apply mutatis mutandis to natural and/or legal persons acting in the course of a profession or business and entering into an Agreement with the Entrepreneur concerning a Product, subject to articles 4 paragraph 2, 17, 18 and 19.
2. The provisions contained in these General Terms and Conditions do not apply to business counterparties. Business counterparties must be understood to mean a natural person or legal entity acting in the course of a profession or business and in that capacity supplying the Entrepreneur and/or supplying and/or purchasing Products in order to resell and/or supply (business-to-business).
These General Terms and Conditions of the NJU/VGZ have been drawn up in consultation with the Consumers’ Association within the framework of the Self-Regulation Consultation Coordination Group of the Social and Economic Council and will enter into force on 1 January 2011.