General Terms and Conditions

Contents:

Article 1 – Definitions
Article 2 – Identity of Tomsgates
Article 3 – Applicability
Article 4 – The Offer
Article 5 – The Contract
Article 6 – Right of Withdrawal
Article 7 – Withdrawal Costs
Article 8 – Exclusion of Right of Withdrawal
Article 9 – The Price
Article 10 – Compliance and Guarantee
Article 11 – Delivery and Performance
Article 12 – Extended Transactions: Duration, Termination and Renewal
Article 13 – Payment
Article 14 – Complaints
Article 15 – Disputes
Article 1 – Definitions

As used in these general terms and conditions, the following terms have the following meanings:

  1. Cooling-off period: the period within which the consumer can exercise his right of withdrawal;
  2. Consumer: any natural person not acting in de exercise of their profession or business and who enters into a distance contract with Tomsgates;
  3. Day: calendar day;
  4. Extended transaction: a distance contract relating to a series of products and/or services, the delivery and/or acquisition of which is spread over a period of time;
  5. Durable data carrier: any means that enables the consumer or Tomsgates to store personally addressed information in a way that permits future consultation and unaltered reproduction of the stored information.
  6. Right of withdrawal: the possibility for the consumer to withdraw from the distance contract within the cooling-off period;
  7. Tomsgates: the natural or legal person who offers products and/or services to consumers from a distance;
  8. Distance contract: a contract under a system organised by Tomsgates for the distance selling of products and/or services, including the conclusion of the contract based exclusively on the use of one or more distance communication techniques;
  9. Distance communication technique: any means that can be used to conclude a contract which do not require the simultaneous physical presence of the consumer and Tomsgates.
  10. General Terms and Conditions: the present General Terms and Conditions of Tomsgates.

Article 2 – Identity of Tomsgates

Tomsgates is a trade name operated by Naviris bvba;
Kriekhof 16, 2547 Lint;
00 32 475.98.47.10
Ivan@Tomsgates.com
VAT BE 0564.797.544

Article 3 – Applicability

  1. These general terms and conditions apply to any offer by Tomsgates and to any distance contract concluded between Tomsgates and the consumer.
  2. Prior to the conclusion of the distance contract, these general terms and conditions will be made available to the consumer. Where this is not reasonably possible, Tomsgates shall, prior to conclusion of the distance contract, notify the consumer that the general terms and conditions can be inspected at Tomsgates and will, upon request, be sent to the consumer free of charge as soon as possible.
  3. If the distance contract is concluded electronically, the text of these general terms and conditions may, in derogation from the previous paragraph and prior to conclusion of the distance contract, be supplied to the Consumer electronically in such a way that the consumer can easily store it on a durable data carrier. Where this is not reasonably possible, Tomsgates shall, prior to conclusion of the distance contract, notify the consumer of where they can electronically access the general terms and conditions and that they will, upon request, be sent electronically or otherwise to the consumer free of charge.
  4. If, in addition to these general terms and conditions, specific product or service conditions apply, the second and third paragraphs shall apply accordingly. In the event of contradictory general terms and conditions, the consumer may at all times invoke the applicable provision that is most favourable to the consumer.
  5. Should one or more provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the contract and of the remaining provisions. The parties shall then immediately replace the invalid provision by a provision that approximates as closely as possible the intent and purpose of the original provision.
  6. Situations not provided for in these General Terms and Conditions shall be assessed in keeping with the spirit of these General Terms and Conditions.
  7. Ambiguities regarding the interpretation or content of one or more provisions of these General Terms and Conditions should be interpreted ‘in the spirit’ of these General Terms and Conditions.

Article 4 – The Offer

  1. If an offer has a limited period of validity or is subject to conditions, this will be explicitly stated in the offer.
  2. The offer is non-binding. Tomsgates is entitled to modify and update the offer.
  3. The offer includes a complete and accurate description of the products and/or services offered. The description is sufficiently detailed to allow the consumer to properly assess the offer. Any illustrations used by Tomsgates are a faithful representation of the products and/or services offered. Apparent mistakes or errors in the offer shall not be binding on Tomsgates.
  4. All pictures, specifications and data in the offer are indicative and cannot give rise to compensation or dissolution of the agreement.
  5. Illustrations of products are a faithful representation of the products offered. Tomsgates cannot guarantee that the colours shown on the website exactly reproduce the colours of the actual products.
  6. Each offer contains information that makes it clear for the consumer what the rights and obligations attached to the acceptance of the offer are. This concerns in particular:
    • the price, including taxes;
    • the delivery costs, if any;
    • the way in which the contract will be brought about and what actions are needed for this;
    • whether or not the right of withdrawal applies;
    • the method of payment, delivery and performance of the contract;
    • the period for acceptance of the offer, or the period during which the price is guaranteed by Tomsgates;
    • the tariff rate for distance communication if the costs for use of the data communication technique are calculated on another basis than the regular basic tariff for the communication medium used;
    • whether the contract, when concluded, will be archived, and, if yes, how it can be consulted by the consumer;
    • the way in which the consumer, prior to concluding the agreement, can check and, where appropriate, correct the information provided as part of the agreement;
    • any other languages, apart from Dutch, in which the agreement can be concluded;
    • the codes of conduct to which Tomsgates has submitted and the way in which the consumer can consult these codes of conduct electronically; and

Article 5 – The Contract

  1. Subject to the provisions in paragraph 4, the contract is concluded at the time of acceptance of the offer by the consumer, provided the applicable conditions are met.
  2. If the consumer has accepted the offer by electronic means, Tomsgates shall immediately confirm receipt of the acceptance of the offer by electronic means. The consumer may terminate the agreement as long as the receipt of this acceptance has not been confirmed by Tomsgates.
  3. If the contract is concluded electronically, Tomsgates shall take suitable technical and organisational measures to protect the electronic transmission of data and to ensure a secure web environment. If the consumer can pay electronically, Tomsgates shall take suitable security measures.
  4. Tomsgates may, within legal frameworks, inquire whether the consumer will be able to meet his payment obligations, as well as any facts and factors relevant in justifying the conclusion of the distance contract. If, based on these inquiries, Tomsgates has sound reasons not to enter into the contract, it will be entitled to refuse an order or request, stating its reasons, or to make performance subject to special conditions.
  5. Tomsgates shall send the following information along with the product or service, either in writing or in such a way as to allow the consumer to store it in an accessible manner on a durable data carrier:
    a. The visiting address of the Tomsgates’ offices to which the consumer may address his complaints;
    b. The conditions under which and the way in which the consumer may exercise his right of withdrawal, or a clear indication that the right of withdrawal does not apply;
    c. Information about guarantees and available after-sale service;
    d. The information referred to in article 4 paragraph 3 of these General Terms and Conditions unless Tomsgates has already provided this information prior to performing the contract;
    e. The conditions for termination of the contract, if the contract has a term of more than one year or in the case of an open-ended contract.
  6. In the case of an extended transaction, the provision of the preceding paragraph applies only to the first delivery.
  7. Each agreement is entered into under the condition precedent of sufficient availability of the products.

Article 6 – Right of Withdrawal

For delivery of products:

  1. When purchasing products, the consumer may cancel the contract within a period of 14 days without having to state any reasons. This cooling-off period does not start until the day after receipt of the product by the consumer or a representative appointed by the consumer and notified to Tomsgates.
  2. If the consumer intends to exercise his right of withdrawal, he must notify Tomsgates thereof within 14 days of receipt of the product. Such notification must be made by sending the completed contact form on the website or an email to Tomsgates. After the consumer has notified his intention to exercise his right of withdrawal, the customer must return the product within 14 days. The consumer is required to prove that the deliveries have been returned, for example, by providing proof of dispatch.
  3. If, upon expiry of the periods referred to in paragraphs 2 and 3, the customer has not notified Tomsgates of his intention to exercise his right of withdrawal or has not returned the product, the purchase shall be deemed to have been effected.

For delivery of services:

  1. For delivery of services, the consumer may cancel the contract within a period of at least 14 days, starting from the date of conclusion of the contract, without having to state any reasons.
  2. To exercise his right of withdrawal, the consumer shall comply with the reasonable and clear instructions provided by Tomsgates at the time of the offer and/or no later than at the time of delivery.

Article 7 – Withdrawal Costs

  1. If the consumer exercises his right of withdrawal, he will be charged no more than the costs of the return shipment.
  2. Any amount already paid by the consumer shall be refunded by Tomsgates as soon as possible and in any case within 14 days after withdrawal, provided the returned product has been received by the web trader or conclusive evidence of complete return shipment can be submitted.

Article 8 – Exclusion of the Right of Withdrawal

  1. Tomsgates may exclude the consumer’s right of withdrawal for products as set out in paragraphs 2 and 3. Exclusion of the right of withdrawal shall apply only if this is expressly indicated by Tomsgates in the offer sufficiently prior to the conclusion of the conclusion of the contract.
  2. Exclusion of the right of withdrawal is possible only for products supplied by Tomsgates in accordance with the consumer’s specifications. If the customer terminates or cancels the contract or if the contract cannot be completed for reasons attributable to the consumer, the latter shall owe Tomsgates compensation in the amount of 50% of the total order amount. If Tomsgates terminates or cancels the contract, the customer, in its capacity of consumer, will be entitled to the same compensation from Tomsgates. No compensation is owed by Tomsgates and no termination of the order can be invoked by the customer if Tomsgates is unable to respect the planned delivery date and has notified the customer thereof no later than 24 hours prior to the scheduled delivery as well as in the event of force majeure.

Article 9 – The Price

  1. The prices of the products and/or services offered shall not be raised during the validity period specified in the offer, except for price changes due to changes in VAT rates.
  2. Price increases within 3 months after conclusion of the contract are permitted only as a result of legal regulations or provisions.
  3. Price increases from 3 months after conclusion of the contract are permitted only if stipulated by Tomsgates and a. as a result of legal regulations or provisions; or b. the consumer is entitled to terminate the contract from the day on which the price increase takes effect.
  4. The prices quoted in the product or service offer are inclusive of VAT.
  5. All prices are subject to printing and typing errors. Tomsgates accepts no liability for the consequences of printing and typing errors. In case of printing and typing errors, Tomsgates will be not be obliged to supply the product at the incorrect price.

Article 10 – Conformity and Guarantee

  1. Tomsgates ensures that the products and/or services comply with the contract, with the specifications set out in the contract, with reasonable requirements of soundness and/or reliability and with the statutory provisions and government regulations applicable at the time of conclusion of the contract. If agreed, Tomsgates also ensures that the product is suitable for other than normal use.
  2. Any defects or faulty goods must be notified in writing within 4 weeks after delivery to Tomsgates. Return of the product must be in its original packaging and in new condition. Products must be returned in their packaging and in new condition.
  3. The guarantee period is 2 years unless a different period has been agreed with Tomsgates. Tomsgates can never be held responsible for the ultimate suitability of the products for any individual application by the consumer, or for any advice regarding the use or application of the products.
  4. The guarantee shall not apply if:
    • The products have been repaired and/or altered by the consumer or by third parties;
    • The products have been exposed to abnormal conditions or have otherwise been treated carelessly or contrary to the instructions of Tomsgates and/or on the packaging;
    • The defect is fully or partially the consequence of current or future governmental regulations regarding the nature or quality of the materials used.

Article 11 – Delivery and Performance

  1. Tomsgates shall exercise the greatest possible care when accepting and processing orders, and when assessing requests for the provision of services.
  2. The place of delivery shall be the address indicated by the consumer to the company.
  3. In consideration of the provisions in paragraph 4 of this article, the company shall process accepted orders with all due speed and no later than within 30 days, unless the consumer has agreed to a longer delivery period. If delivery is delayed, or if an order can only be processed partially, the consumer shall be informed accordingly within 30 days after placing the order. The consumer shall then be entitled to terminate the agreement at no cost. The consumer shall not be entitled to any compensation.
  4. All delivery times are only estimates and the consumer cannot derive any rights from them. If a delivery time is exceeded, the consumer is not entitled to compensation.
  5. In case of termination pursuant to paragraph 3 of this article, Tomsgates shall refund the amount paid by the consumer as soon as possible and in any case within 14 days after termination.
  6. If an ordered product cannot be delivered, Tomsgates shall endeavour to deliver a replacement item. No later than at the time of delivery shall Tomsgates notify that a replacement item will be delivered. The right of withdrawal cannot be excluded for replacement items. The costs of any return shipment shall be borne by Tomsgates.
  7. Tomsgates bears the risk of damage and/or loss of products until the time of delivery to the consumer or a representative appointed by the customer and notified to Tomsgates, unless expressly agreed otherwise.

Article 12 – Extended Transactions: Duration, Termination and Extension

Termination

  1. The consumer may at any time terminate an open-ended contract for the regular delivery of products (including electricity) or services, subject to compliance with the agreed termination rules and a notice of maximum one month.
  2. The consumer may at any time terminate a fixed term contract for the regular delivery of products (including electricity) or services, subject to compliance with the agreed termination rules and a notice of maximum one month.
  3. The consumer may terminate the contracts referred to in the preceding paragraphs:
    • at any time without being restricted to a specific point in time or period of time;
    • at least in the same manner in which they were concluded by the consumer;
    • at all times subject to the same notice as stipulated by Tomsgates for itself.

Extension

  1. A fixed term contract for the regular delivery of products (including electricity) or services may not be automatically extended or renewed for a fixed period.
  2. In derogation from the preceding paragraph, a fixed term contract for the regular delivery of dailies, newspapers, weeklies or magazines may be automatically extended for a fixed period of maximum three months, if the consumer may terminate the extended contract towards the end of the extension subject to a notice of maximum one month.
  3. A fixed term contract for the regular delivery of products or services may only be automatically extended for an indefinite period if the consumer may any time terminate the extended contract subject to a notice of maximum one month and a notice of maximum three months in the case of contract for the regular delivery, but less than once per month, of dailies, newspapers, weeklies or magazines.
  4. A fixed term contract for the regular introductory delivery of dailies, newspapers, weeklies and magazines (trial or introductory subscription) cannot be automatically continued and automatically ends upon expiry of the trial or introductory period.

Duration

  1. In the case of a contract duration of more than one year, the consumer may, after one year, terminate the contract at any time subject to a notice of maximum one month, unless termination prior to the end of the agreed period is unacceptable on grounds of reasonableness and fairness.

Article 13 – Payment

  1. Unless otherwise agreed, the amounts owed by the consumer are payable within 7 days after the start of the cooling-off period referred to in article 6 paragraph 1. In the case of a contract for services, this period commences upon receipt by the consumer of the confirmation of the contract.
  2. The consumer shall notify Tomsgates forthwith of any inaccuracies in the payment details provided or specified.
  3. In case of non-payment by the consumer, Tomsgates shall be entitled, subject to legal restrictions, to charge reasonable and previously communicated costs to the consumer.

Article 14 – Complaints

  1. Tomsgates has a well publicised complaints procedure and handles any complaint in accordance with this complaints procedure.
  2. Complaints relating to the performance of the contract must be submitted to Tomsgates within 7 days after the consumer has discovered the defects.
  3. Complaints submitted to Tomsgates will be answered within a period of 14 days from their receipt. If a complaint is expected to require a longer processing time, Tomsgates shall send an acknowledgement of receipt within 14 days, indicating when the consumer can expect to receive a more detailed reply.
  4. A complaint that cannot be resolved by mutual agreement becomes a dispute that is subject to the disputes settlement scheme.
  5. Complaints must first of all be submitted to Tomsgates. For complaints that cannot be resolved by mutual agreement the consumer must approach Stichting WebwinkelKeur (www.webwinkelkeur.nl), which will mediate free of charge. If the complaint remains unresolved, the consumer may refer his complaint to the independent disputes committee appointed by Stichting WebwinkelKeur. The judgment of this committee shall be binding and both Tomsgates and the consumer shall agree to its binding ruling. Referral of a dispute to this disputes committee involves costs which are payable by the consumer to the relevant committee. Complaints can also be raised to the European ODR platform (http://ec.europa.eu/odr).
  6. A complaint does not suspend Tomsgates’ obligations, unless otherwise specified in writing by Tomsgates.
  7. If a complaint is considered admissible by Tomsgates, Tomsgates shall, at its discretion, replace or repair the defective products free of charge.

Article 15 – Disputes

  1. Contracts between Tomsgates and the consumer to which these General Terms and Conditions apply, are governed exclusively by Belgian law, also if the consumer resides abroad.
  2. The Vienna Sales Convention does not apply.