Terms and conditions
DEFINITIONS byJacky: means byJacky, a sole proprietorship with its principal place of business at (5617 BC) Eindhoven, at Torenallee 20, the Netherlands, with company number 65407652;
Clause: means a clause of these General Terms and Conditions;
Client: means a person who does not operate in the course of a profession or is not involved in a similar business as byJacky or acts on behalf of a company and enters into a Contract with and wants to make a purchase long distance;
Contract: means any long distance contract effected between byJacky and the Client, including any amendment or addition to said Contract, as well as all (legal) acts for the preparation or execution of the contract;
Cooling-Off Period: has the meaning described thereto in Clause 1;
General Terms and Conditions: means these general terms and conditions used by byJacky;
Long Distance Transaction: means a transaction that uses a sales system which has been established by byJacky for the purpose of selling long distance and that uses the webstore of byJacky to finalise the sale, a transaction that is being conducted by means of back and forth e-mails using among others the “contact-me” button or transactions that can be made through telephone contact;
Product(s): means all products to be delivered by byJacky to the Client under a Contract as listed on the Website;
Right of Withdrawal: has the meaning described thereto in Clause 1; and
Website: means the website by-jacky.nl, on which the Client can electronically order byJacky’s Products.
The present General Terms and Conditions are applicable on every offer made by byJacky, any order placed by the Client, to every Contract effected between byJacky and the Client and on all transactions conducted with byJacky.Before any Long Distance Transaction takes place the General Terms and Conditions will and have been made available to the Client. The General Terms and Conditions will be made available to the Client either by regular mail or by electronic mail in such a way that the Client can easily file it for future reference. If this is not reasonably possible, before the Long Distance Transaction is concluded, it will be indicated where the General Terms and Conditions can be consulted electronically and they will be sent to the Client free of charge at his/her request electronically or in any other way.The applicability of certain delivery or payment conditions or other terms and conditions by the Client to byJacky is explicitly rejected.The General Terms and Conditions are also applicable on transactions with the Client in case byJacky is using a third party to execute the transaction.Deviations or additions to the General Terms and Conditions during any individual transaction are only applicable to that specific transaction and do not have any general validity. They are only valid if there is a written confirmation between byJacky and the Client.The Client is obligated to accept the General Terms and Conditions before the conclusion of a Contract, in the absence of which the Contract will not be concluded. Placing an order through the webshop and checking the box next to the text: “I have read and agree to the Website “General Terms and Conditions” is considered acceptance of the General Terms and Conditions.In case one or more provisions of the General Terms and Conditions have been declared partially or completely invalid, the other conditions will continue to be applicable and the provision in question will be replaced without delay, in mutual consultation, by a provision that approximates the scope of the original as much as possible.
Offers by byJacky are non-binding unless a time period for acceptance is part of the offer. ByJacky is entitled to change, modify and withdraw its offer. ByJacky explicitly reserves the right to change prices if so required.
An offer includes a complete and detailed description of the offered Product. The description is detailed enough to enable the Client to make an educated decision in regard to the offer.
ByJacky is not obliged to deliver a Product for the price that is quoted in an offer if such price is based on a printed or written error or is based on an obvious mistake. The Client has no right to a lower price if any given Product is offered at such a price by another sales channel of byJacky, or any other company related to byJacky.Images, drawings, measurements, and other descriptions of sold Products are as accurate as possible, though not legally binding. Small deviations are allowed and do not give the Client any legal rights.The Client can place orders in the ways indicated on the Website.
A Contract shall be concluded, without prejudice of what is stated in Clause 4, with the acceptance of the Offer by the Client and completion of the agreed upon conditions. Orders by phone only lead to an agreement after written confirmation by byJacky.In case the Client has accepted an offer via electronic methods, byJacky will immediately confirm acceptance via the same method. As long as the receipt of this acceptance has not been confirmed by byJacky, the Client may terminate the Contract.If and to the extent that the Contract is formed electronically, byJacky will take suitable technical and organisational measures to secure the electronic transfer of data and provide a safe digital environment. If the Client can pay electronically, byJacky in cooperation with her providers shall take appropriate security measures.Within the legal frameworks, byJacky has the right to investigate and/or ask the Client for information in regard to the Client’s ability to fulfill his/her financial obligations, and in regard to the facts and circumstances that lead to any conclusion whether byJacky wants to finalise an Contract. If this investigation gives byJacky reasonable grounds not to enter into an Contract, byJacky has the right not to accept an order or to add special conditions to an Contract.Along with the Product byJacky will provide the following information to the Client:the conditions under which and in what way the Client may reconsider any purchase; and any information in regard to conformity, guarantee and after-sales service.In case the prices of materials, raw materials, semi-manufacturing, freight, taxes, exchange rates and/or other cost price factors increase during the period between establishing the Contract and date of delivery of the Products, byJacky has a right to charge a higher selling price at the same rate as the increase of the cost price. During the execution of the Contract byJacky has the right to ask the Client for proof of credit worthiness. ByJacky shall take into account existing legal frameworks.Products sold by byJacky are for the Client’s personal use only. Personal use includes the use by immediate family members, relatives, and friends of the Client. The Client may not resell purchased Products without explicit and written approval by byJacky or to consign it to dealers or resellers.
ByJacky will make the delivery either by shipment or by handing over the Product the client or his/her representative.Place of delivery will be the address given by the Client to byJacky.If the Client has provided an incorrect address for the delivery, byJacky has the right to charge extra delivery costs to the Client.Dates of delivery are estimates as quoted by byJacky and are not to be considered as final deadlines. The mere lapse of a delivery time does not entitle the Client to damages, termination of the Contract, or non-performance of any obligation on the part of the Client arising from the Contract or any connected Contract, such with the exception of the provisions in Clause 7. ByJacky will never be liable to pay for loss of profit, incurred losses, expenses, or immaterial damage such as emotional or stagnation.In case a delivery is delayed by a reasonable amount of time and it is not byJacky’s fault, the Client cannot claim any right to damages, rescission of the agreement or non-fulfilment of any obligation that may arise for the Client from this or any other related agreement, except as provided in Clause 7.ByJacky does its best to keep the Website as up-to-date as possible. In case delivery of an ordered Product is no longer possible, byJacky will do its utmost to supply a substitute Product. The Client will be informed within thirty (30) days after placing the order that the ordered Product is no longer available and will be presented with the option of a substitute.If a Product cannot be delivered or only partially, the Client will be notified within thirty (30) days. In that case, the Client has a right to terminate the Contract without any money being due. The Client has no right to claim damages. In case of termination, byJacky will refund the amount paid by the Client as soon as possible, but at the latest within fourteen (14) days after termination.ByJacky will remain liable for damage to the Product or loss of the Product until delivery to the Client or to his/her representative. ByJacky will therefore insure the Product up to the moment delivery has taken place. After delivery to the Client the risks for the Product shall transfer to the Client.The Client is obliged to accept the Products at the agreed place/places at the moment byJacky delivers them or has them delivered or at the moment they are made available to him/her according to the Contract. If the Client fails to do so, he/she shall bear the resulting costs thereof, including the shipping costs.If the Client refuses or neglects to provide information or instructions that are necessary for delivery, the Products destined for delivery will be stored at the expense and risk of the Client.
RIGHT OF WITHDRAWAL
When purchasing Products, the Client has the opportunity to terminate the Contract without specifying any reasons for a period of fourteen (14) days. This Cooling-Off Period commences on the day after receipt of the Products by the Client or a third party designated by the Client, unless it concerns a personalised Product as described further in Clause 1(a). Furthermore, the Right of Withdrawal may be excluded by byJacky in accordance with Article 8.During the Cooling-Off Period, the Client shall handle the Product and its packaging with care. He/she shall only unpack or use the Product to the extent necessary to judge whether he/she wishes to keep it. If he/she wishes to exercise his/her Right of Withdrawal, the Client shall return the Product with all delivered accessories and - if reasonably possible - in its original state and packaging to byJacky, in accordance with the reasonable and clear instructions given by byJacky.If the Client wishes to exercise his/her Right of Withdrawal he/she must make this known by means of the termination form which is available on the Website or by sending an email to byJacky. After the Client has notified byJacky that he/she wishes to exercise his/her Right of Withdrawal, the Product must be returned within fourteen (14) days. The Client must prove that the delivered Products have been returned in time by means of a certificate of posting.If, at the end of the periods mentioned in Clauses 1 and 6.3, the Client has not exercised his/her Right of Withdrawal, expressed his/her will to do so or has not returned the Product(s) to byJacky, the purchase is final.
COSTS IN CASE OF WITHDRAWAL
If the Client exercises his/her Right of Withdrawal, the Client will be responsible for the cost of the return shipment.If the Client has paid an amount, byJacky will refund this amount as soon as possible, at least within fourteen (14) days after exercise of the Client’s Right of Withdrawal. This repayment is subject to the condition that the returned Product has been received by byJacky. Reimbursement will be made through the same payment method used by the Client, unless the Client explicitly agrees to another payment method and provided that the Client does not incur any expense as a result of such reimbursement.By way of derogation of Clause 3, byJacky shall not be required to reimburse supplementary expenses, if the Client has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by byJacky.
EXCLUSION OF THE RIGHT OF WITHDRAWAL
ByJacky may exclude the Client's Right of Withdrawal in the following cases: the to be delivered Product(s) are made to the Client’s specifications; orhave not been prefabricated; orhave been made on the basis of an individual choice of - or decision by the Client;have been clearly personalised;Products that cannot be returned due to their nature; andProducts of which the price is subject to fluctuations over which byJacky has no influence for example but not limited to the price of raw materials. In the event of a pesonalised Product, byJacky shall inform the Client in advance thereof.
PRICE AND PAYMENT
All prices quoted by byJacky are including VAT and insured against damages, loss and/or theft up to the moment of delivery to the Client or his/her representative.The Client can pay for the ordered Products by means of iDeal, Paypal and creditcard.All Products sold by byJacky must be paid by the Client before delivery at the moment the Contract is concluded. In case the Client does not comply with the preceding sentence byJacky can charge additional fees and costs.Receipts for the Products delivered by byJacky will be mailed to the e-mail address given by the Client. ByJacky has the right to keep possession of the Products purchased by the Client until payment has been made in full. ByJacky retains full ownership of the delivered Product(s) until the purchase price has been paid in full.The Client has the obligation to immediately report any inaccuracies in payment data provided or mentioned to byJacky.
CONFORMITY AND WARRANTY
ByJacky guarantees that the Products comply with the Contract and the specifications listed in the offer.The warranty period provided by byJacky corresponds with the manufacturer’s warranty term. However, byJacky can never be held responsible for the suitability of the Products for every individual application by the Client, nor for any advice given in regard to the use or the application of the Products.The warranty does not apply when: the Client has repaired, modified or processed the Products itself or had a third party repair, modify or process the Products;the delivered Products have been exposed to abnormal conditions or were otherwise used carelessly or were used contrary to the instructions provided by byJacky and/or stated on the packaging;the defect is fully or partially the result of (future) government regulations in regard to the nature or the quality of the materials used. This can for example but not limited to be the case wih certification of raw materials.The warranty does not entitle the Client to a replacement or refund for lost or stolen items.No warranty shall be provided for second hand Products.The warranty period for new Products made by byJacky from second hand products/goods is twelve (12) months and starts after the date of delivery.
The Client must notify byJacky in writing of any defects or incorrectly delivered Products within four (4) weeks after delivery. A complaint by a Client that the delivered Product is defective needs to be made within the seven (7) working days after the Client has discovered the defect and within the warranty period in accordance with article 2. After this period any complaint is considered past due. Each complaint must be accompanied by a receipt date and number, a complete and detailed description of the complaint. The complaint should be detailed enough to enable byJacky to make an educated decision in regard to the complaint.The burden of proof that the delivered Products is not equal to what was agreed upon lies with the Client. In case the Client notifies byJacky of a complaint on delivered Products, the Client should make it possible for byJacky to inspect the Products as soon as possible. ByJacky will inspect the Products in the most convenient manner which the Client will enable, if necessary by presenting the Products in person. All reasonable expenses made by byJacky will be the responsibility of the Client in case the complaint is considered ungrounded. Minor deviations in the delivered goods in terms of size, colour, shape and packaging, cannot be a reason for the Client to: (i) terminate the agreement after the expiry of the Cooling-Off Period, (ii) refuse to accept delivery, (iii) claim damages from or file a complaint. The same goes for small modifications by the manufacturer of the Products in case these modifications do not change the Product in a material way. Complaints submitted to byJacky shall be answered within fourteen (14) days from the date of receipt. If a complaint requires a foreseeable longer time to process, byJacky will reply within fourteen (14) days with a notice of receipt and an indication of when the Client can expect a more detailed reply. Products must be returned in their original packaging and in new condition.
If after the conclusion of a Contract it appears that delivery by byJacky will be difficult or not possible because there are circumstances beyond control, byJacky has the right to either cancel the Contract or to postpone delivery, in which case byJacky will notify the Client as soon as possible depending on the conditions.Circumstances beyond control, especially include but not limited to war, threat of war, civil war, riots, disease, epidemic, pandemic, natural disaster, new laws that affect imports, new laws that affect delivery of parts, materials, raw materials, semi manufacturing, transportation problems including traffic jams, strikes or labor unrest, interruption of energy supply, fire, and other disturbances at byJacky or at its suppliers, and delay in transport of the Products. In case of circumstances beyond control as well as in case of failure to perform by the Client, byJacky has the right to either postpone delivery until the circumstances have changed or if delivery has not taken place yet to cancel the Contract without being held liable for any damages as described in article 78 of Book 6 of the Dutch Civil Code.
Liability of byJacky will be waived in case of circumstances beyond its control, in which case, due to temporary or final inability to deliver, byJacky has a right to partially or completely terminate the Contract.ByJacky is never liable for damages or wear and tear caused by usage of sold Products, or for the loss of stones from jewelry. These risks are for the risk and account of the Client. Furthermore, when the Client orders the setting of stones or engravings on Products the risk of damage is also for the risk and account of the Client. The liability of byJacky, based on any Contract, will be limited to a maximum of one hundred percent (100%) of the amount of the invoice. ByJacky is never liable for any consequential damages nor for any loss of profit, or other incurred losses or expenses, immaterial damage such as emotional or stagnation to the Client.ByJacky is not liable for any damages caused by the failure of software including the presence of a virus unless the damage is caused on purpose or gross negligence by byJacky.
INTELLECTUAL PROPERTY RIGHTS
The Intellectual Property Rights to the (designs) of the Products, as well as accompanying texts, images, design, data files, photos and other (still or moving) visual materials, formats, software, brands, domain names and other materials, which arise from the Website, are held by byJacky.The Client is not entitled to publish or reproduce (parts of) the Website in any way. Consumers may only place a hyperlink to the Website when this is purely for information purposes towards othe potential Clients. The placement of a hyperlink for any other purpose, including a commercial aim, is strictly prohibited.
Dutch law exclusively governs all Contracts between byJacky and the Client to which these General Terms and Conditions apply. The Vienna Convention on Contracts for the International Sale of Goods is excluded.Disputes that occur between byJacky and the Client, if needed, will in case the Client is an EU/EEA/CH citizen, be submitted to the competent court of Amsterdam. Notwithstanding the previous sentence, shall byJacky inform the Client, one (1) month before initiating proceedings, that during this period of one (1) month the Client has the possibility to opt that the proceedings have to take place before the competent court in the jurisdiction in which the Client resides.The Client, who is an EU/EEA/CH citizen is always free to start proceedings against byJacky before the competent court in the jurisdiction in which the Client resides. Disputes that occur between byJacky and the Client who is a non EU/EEA/CH citizen, if needed, will be submitted to the Netherlands Arbitration Institute and shall take place in accordance with the Dutch Artbitration Instute arbitration rules. The place of arbitration shall be Amsterdam. Notwithstanding the previous sentence, shall byJacky inform the Client, one (1) month before initiating proceedings for the Netherlands Arbitration Institute that during a one (1) month period the Client has the possibility to opt that the proceedings have to take place before the competent court in the Netherlands.