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Terms & Conditions for the Use of Seller Accounts to Sell via swhales.eu

Terms & Conditions for the Use of Seller Accounts to Sell via swhales.eu of S’whales B.V. If there are discrepancies, the Dutch version of this page shall prevail.

Version of December 17, 2023

We kindly request that you carefully read these terms and conditions. By registering as a business seller via swhales.eu, you are agreeing to accept and comply with these terms of use, including all attachments.

Article 1 - Definitions

  1. S’whales: the private company S’whales b.v. located in (4901HW) Oosterhout, Zandheuvel 52-B. Operating in the Netherlands, Belgium and France under VAT number: NL865720812B01 and, Chamber of Commerce from The Netherlands number 91638992.
  2. Environment: swhales.eu, m.swhales.eu, and any other application designated by S’whales.
  3. Platform: the environment on which third parties can offer their products, falling within product categories designated by S’whales, to Users.
  4. User: every visitor to the Environment.
  5. Terms of Use: these terms of use for business sales via swhales.eu, including all attachments and the information as included on the Support pages for Business Sellers.
  6. Business Seller(s): any legal entity that has been registered for at least 10 weeks with the Chamber of Commerce in the Netherlands or with the trade register in Belgium or France and has a VAT number, has a postal address and a payment account in the Netherlands or Belgium or France, has created a Seller Account, has accepted these Terms of Use and has been accepted as a seller by S’whales and of which the (indirect) director(s), shareholders and/or ultimate beneficial owner have not previously been involved to another Seller Account that has been closed pursuant to Article 15 of the Terms of Use.
  7. Seller Account: the account created by the Business Seller in the Environment.
  8. Stripe account: the account created by the Business Seller in Stripe via the Environment to receive and make secure payments.
  9. Seller Shop: the distinct branded shop page that may be provided to the Business Seller based on its subscription, exclusively showcasing its products.
  10. Items: all products for which S’whales has indicated that they may be offered by Business Sellers in the Environment.
  11. Customer: a User of the Environment who purchases an Item via the Platform.
  12. Purchase Agreement: the agreement concluded between the Business Seller and a Customer due to the Customer’s purchase of an Item from the Business Seller via the Platform.
  13. Content: (part of) the specifications of Items in the Environment, which specifications and Items can be adjusted by S’whales at any time, consisting of, among other things, text, images and technical specifications, which S’whales makes available to Business Sellers.
  14. Total price: price including VAT, shipping costs and, where applicable, disposal contribution and all other possible amounts imposed by the government that are charged to the Customer.
  15. S’whales Brands: the S’whales word and figurative marks, as well as other distinguishing marks.
  16. Fee: the commission charged by S’whales to the Business Seller on the Sales Price, consisting of a fixed and a variable component, as set out on the Support pages for Business Sellers.
  17. Sales price: Sales price: price including shipping costs, including any disposal contribution and/or other government levies, including VAT and including the service contribution.
  18. Buy Block: the best sales position for an Item in the Environment as detailed on the Support pages for Business Sellers. The Business Seller in the purchase block is shown as the first seller if multiple Business Sellers offer the same Item. In the purchase block, only one Business Seller is shown per Item.
  19. SER Score: the Socially & Ecologically Responsible score attributed to a Seller Account and its products by S’whales according to S’whales SER Score grading system, as set out on the  Support pages for Business Sellers.
  20.  Holiday(s):

a. for Business Sellers registered with the Chamber of Commerce in the Netherlands: New Year’s Day (January 1), Easter Monday (changeable dates), King’s Day (April 27), Liberation Day (once every five years (start date May 5, 2020), Ascension Day (changeable dates), Whit Monday (changeable dates), Christmas (25, 26 December);
b. for Business Sellers registered with the commercial register in Belgium: New Year’s Day (January 1), Easter Monday (changeable dates), Labor Day (May 1), Ascension Day (changeable dates), Whit Monday (changeable dates), National Holiday of Belgium (July 21), Our Lady’s Assumption (August 15), All Saints’ Day (November 1), Armistice Day (November 11), Christmas (December 25);
c. for Business Sellers registered with the Chamber of Commerce in France: New Year’s Day (January 1), Easter Monday (changeable dates), Labord Day (May 1), Victory Day (May 8), Ascension Day (changeable dates), Whit Monday (changeable dates), National Holiday of France (July 14), All Saints’ Day (November 1), Armistice Day (November 11), Christmas (25, 26 December).

Article 2 - Seller Account

  1. Each Business Seller shall be obligated to create a Seller Account before offering and selling Items on the Platform.
  2. Registration as a Business Seller implies acceptance of the Terms of Use and the obligation to comply with both the Terms of Use and the information on the Support pages for Business Sellers.
  3. To qualify and act as a Business Seller, the entity must:

a. have been registered with the Chamber of Commerce in the Netherlands or the Chamber of Commerce in France or the trade register in Belgium for at least 10 weeks;
b. have a valid VAT number;
c. have a login account at swhales.eu;
d. have created a Seller Account in the Environment;
e. have created a Stripe Account and connected the Stripe account to the Seller Account via the Environment;
f. confirm that the Terms of Use have been accepted;
g. confirm that the (indirect) director(s), shareholders, or the ultimate beneficial owner of the Seller Account have not been involved in another Seller Account that has been closed pursuant to Article 15;
h. have a Dutch, Belgian or French current account;
i. have a Dutch, Belgian or French postal address.

4. From the moment the Seller Account is created, the Business Seller is entitled to offer Items on the Platform in accordance with the Terms of Use.
5. The Business Seller can only participate with one (1) brand/trade name per Seller Account. If the Business Seller wishes to offer Items via the Platform under multiple brands/trade names, the Business Seller must create multiple Seller Accounts.
6. The Business Seller is at all times fully responsible for the use made of the Seller Account and for those who gain access to the Seller Account. S’whales is entitled to suspend the use of the Seller Account by the Business Seller for reasons of its own, at its sole discretion, with due observance of the provisions of Article 15 of the User Terms and Conditions.
7. If the Business Seller does not meet any payment obligation to S’whales, whether or not under these Terms of Use, S’whales is entitled to suspend the use of the Seller Account by the Business Seller (in accordance with Article 15 of the Terms of Use) until the payment obligation is fulfilled.
8. The Business Seller is responsible for the accuracy of the data in their Seller Account.

Article 3 - Offer

  1. The Business Seller may offer new and second-hand items. The Items must comply with the conditions as stated on the Support pages for Business Sellers.
  2. S’whales is exclusively authorised to determine the product categories and/or subcategories permissible for offering on the Platform and/or inclusion to the Platform, as well as the timing of such possibilities. S’whales also reserves the right to withdraw product categories and/or subcategories from the Platform’s offerings, with the Business Seller having no recourse against S’whales. S’whales retains the right to exclude specific Items from the product categories and/or subcategories, providing reasons.
  3. The product categories and/or subcategories that are or will be made available by S’whales are detailed on the Support pages for Business Sellers. S’whales retains the unilateral right to periodically amend the website, including product categories and/or subcategories, in accordance with Article 21, paragraph 3 of the Terms of Use.
  4. S’whales will assign a SER Score to the Seller Shop and its products in accordance with the S’whales SER Score grading system, which will be visibly displayed on both the Seller Shop and its products within the Environment.
  5. S’whales may or may not offer to translate the content of the products published on the Environment, depending on the subscription chosen by the Business Seller. If S’whales is not responsible for translating the content, the Business Seller is obligated to provide and add the translation as specified by S’whales on the Support pages for Business Sellers. S’whales is not responsible or liable for the translations generated by the Business Seller through S’whales or through the translation tools of the Environment.
  6. S’whales is at liberty to prohibit the Business Seller from offering specific Items on the Platform, providing reasons. Upon S’whales’s request, the Business Seller must promptly cease offering the relevant Item. If the Item persists on the Platform, S’whales is authorised to remove the offer of the Item in question.
  7. S’whales may remove a specific Item from a Business Seller on the Platform if it is deemed below standard, as indicated on the Seller Account of a Business Seller. Further details on when S’whales considers an article to be performing below standard can be found here.
  8. S’whales will not display second-hand Items from the Business Seller on the Platform if the Sales Price of the Item exceeds the Sales Price of the same Item currently offered as new on the Environment in the Purchase Block, if applicable.
  9. S’whales reserves the right not to feature or to remove from the Platform any offer or information provided by the Business Seller if, in S’whales’s opinion, it is inaccurate or misleading, or violates these conditions, or if, in S’whales’s judgment, it could be detrimental to the reputation of S’whales, the Platform, or third parties.
  10. The Business Seller shall provide free returns to Customers and shall never impose return costs separately.

Article 4 - Order and delivery

  1. A User may place an order for an Item offered by the Business Seller via the normal ordering process at S’whales.
  2. An order for an Item listed by the Business Seller will then be processed in accordance with the Support pages for Business Sellers.
  3. If the Business Seller receives an order via S’whales, they are not entitled to settle the order outside the procedure outlined on the Support pages for Business Sellers.
  4. When dispatching the order, the Business Seller shall affix a dispatch seal containing the S’whales order number associated with the order. If this is not feasible, the Business Seller shall utilise the packing slip digitally provided by swhales.eu to send the order, ensuring no modifications are made to it.
  5. The Business Seller is only authorised to use:

a. unbranded shipping box;
b. a shipping box bearing the company name of the Business Seller or the name under which the Business Seller operates on the Platform; or
c. a shipping box directly purchased by the Business Seller from S’whales’ business partners, featuring the company name and logo of S’whales.

6. The Business Seller acknowledges that orders with delivery addresses outside the Netherlands, Belgium, or France cannot be accepted via the Platform.
7. The Business Seller is obligated to accept and dispatch orders with Dutch, Belgian, and French delivery addresses.
8. The Business Seller guarantees that all deliveries to the Customer originate from the European Union. The Business Seller acknowledges that dispatching Items to the Customer from outside the European Union is strictly prohibited.

Article 5 - Customer Relationship

  1. If a Customer of the Platform purchases an Item offered by the Business Partner, a Purchase Agreement is concluded between the Business Seller and the Customer. The Business Seller is obliged to the Customer to apply the general terms and conditions that have been added as  appendix  1  to these User Terms and Conditions and form an integral part of them.
  2. The Business Seller acknowledges that S’whales is and/or will not be a party to this Purchase Agreement. However, Customers will have to accept the “Terms and Conditions for purchasing from other sellers” before Customers can conclude a Purchase Agreement with the Business Seller via the Platform. These conditions apply between S’whales and the Customer and relate to the service to be provided by S’whales, i.e. the Platform, and the use thereof by the Customer. S’whales is entitled to change the “Terms and conditions for purchasing from other sellers” from time to time.
  3. The Business Seller is responsible for correctly complying with the Purchase Agreement at his own expense and risk. The Business Seller acknowledges that in accordance with the provisions of these Terms of Use and the General Terms and Conditions for Purchasing from Other Sellers, the Customer can contact S’whales. The Business Seller will indemnify S’whales against any claim that a Customer makes against S’whales as a result of or in connection with the conclusion and/or execution of the Purchase Agreement.
  4. The Business Seller acknowledges that S’whales uses so-called “service levels”, as included in Appendix 2, and understands that S’whales reserves the right to suspend the Seller Account if the Business Seller does not meet these service levels, taking into account the stipulated in article 15 of the Terms of Use. S’whales reserves the right to change the service levels, considering the provisions detailed in Article 21, paragraph 3 of the User Terms and Conditions.
  5. The Business Seller will provide S’whales with the track & trace number of all Items sent by the Business Seller for the purpose of S’whales monitoring the Business Seller’s compliance with the service levels mentioned in Appendix 2.
  6. The so-called “after-sales”, including but not limited to customer service, warranty and handling of returns, is entirely at the expense and risk of the Business Seller. The Business Seller guarantees that questions received from Customers will be answered within twenty-four (24) hours. Saturday, Sunday and public holidays do not count.
  7. At the request of the Customer, the Business Seller will provide the invoice associated with the order, within the period indicated in Appendix 2. The Business Seller can also provide the invoice on its own initiative. In both cases, the Business Seller should contact S’whales which will forward the invoice to the Customer.
  8. The Business Seller acknowledges and agrees that Customers participate in an evaluation system (resulting in the Business Seller obtaining a so-called “rating”) and can also write reviews about the Business Seller and post them on the Environment. S’whales has no influence on these reviews and will not censor them, unless the Business Seller demonstrates that a review is contrary to laws or regulations, public order and/or good morals, concerns only a product review on a shop review, or is about another Business Seller, contains personal data(s) or a URL or is fraudulent. Such reviews may be removed by S’whales promptly upon becoming aware of them.
  9. The Business Seller is obliged to ensure that his offer and the execution of the Purchase Agreement are in accordance with applicable laws and regulations and the Terms and Conditions of Purchasing from Other Sellers (of S’whales, as amended from time to time). The Business Seller is not entitled to deviate from this or to (re)conclude the sale with a Customer outside the Platform.
  10. S’whales will send Customers a confirmation by email after the Purchase Agreement has been concluded. For the rest, contact with the customer is in accordance with the provisions on the Support pages for Business Sellers.  The Business Seller hereby irrevocably authorises S’whales to communicate directly with the Customer on behalf of and at the expense and risk of the Business Seller without S’whales becoming a party to the Purchase Agreement.
  11. Through the Environment, S’whales offers the Business Seller a translation tool that the Business Seller can use optionally and if desired when communicating with customers. Even if the Business Seller uses any translation tool offered without obligation by S’whales through the Environment when communicating with Customers, the Business Seller is himself responsible for translations and the content of this communication. It is the Business Seller’s responsibility to check such translations for accuracy and completeness. S’whales is not responsible or liable for the translations that the Business Seller generates using the translation tool.

Article 6 - Payments

  1. The Business Seller pays S’whales a Compensation for each Item sold via the Platform, unless the Purchase Agreement is terminated by a Customer within the period stated in the general terms and conditions included in Appendix 1. The amount of the Reimbursement per product category is included on the Support pages for Business Sellers. The Business Seller acknowledges that S’whales is entitled to unilaterally adjust the amount of the Reimbursement for each subcategory and/or product category twice a year. The Business Seller will be informed of this seven (7) days prior to commencement.
  2. S’whales will set up the Platform in such a way that Customers pay to S’whales. S’whales will collect the payments from the Customers. In principle, S’whales only accepts Customers whom it also accepts for the purchase of its own Items, and S’whales reserves the right at all times not to accept Customers. The Business Seller hereby grants S’whales the irrevocable right to exercise the collection rights arising from the Purchase Agreements on behalf of S’whales and to the exclusion of the Business Seller.
  3. The Business Seller is not entitled to accept payments made directly to him by the Customer. In that case, the Business Seller will refund the amount received to the Customer and inform the Customer that payment can only be made to S’whales. The Business Seller hereby accepts that a payment by a Customer to S’whales releases the Customer from his obligation to pay the Business Seller.
  4. The Total Price of each Item offered by the Business Seller on the Platform must be equal to the Total Price for which the Business Seller offers the relevant Item on its own website. This condition is imposed on the Business Seller to prevent “piggybacking” on the potential reach of the Platform with the aim of trying to close the sale (at a lower Total Price) on its own website, so that S’whales can improve the quality, innovation, and continued existence of the Platform.
  5. If a Purchase Agreement is dissolved within the period stated in the general terms and conditions included in Appendix 1, S’whales will return the payment directly to the Customer within the period stated in these general terms and conditions. In the event that the Business Seller has already received payment for this Purchase Agreement from S’whales, S’whales is entitled to recover this amount from the Business Seller. If a Purchase Agreement is terminated after the term stated in the general terms and conditions included in Appendix 1, the Customer must contact the Business Seller directly to have a payment returned. S’whales is not a party to this and is not involved in whether or not the amount paid by the Customer is refunded and/or exchanged for the relevant Item. S’whales is not obliged to reimburse any amount to the Business Seller due to a Purchase Agreement that is dissolved after this period, and S’whales is entitled to retain the commission.

Article 7 - Services S’whales

  1. The Business Seller may qualify for payment under the guarantee scheme by S’whales to compensate for damages if the Customer fails to fulfill their payment obligation. The eligibility of a Business Seller for the guarantee scheme for a specific order and the maximum guarantee amount they can claim is solely at the discretion of S’whales. In cases where the Business Seller does not qualify for the guarantee scheme, they acknowledge the payment risk for the uncovered amount, and S’whales bears no liability to the Business Seller for such payments.
  2. The payments received by S’whales will be deposited by S’whales, after deduction of the Fee as determined in Article 6.1 of these User Terms and Conditions and any settlement(s) in accordance with Article 7.3 of these User Terms and Conditions, to the Business Seller’s Stripe Account connected within the Seller Account by the Business Seller in the Environment. Payment is made by S’whales in principle once per calendar month. Stripe will prepare an invoice for these payments. If an order has not been received by the Customer 5 working days after the agreed delivery date, or after the last day of the agreed delivery period, S’whales will regard the order as not delivered. The Customer will then have no payment obligation and no payment will be made to the Business Seller. If the Business Seller has already been paid, S’whales may offset the paid amount in accordance with Article 7.3 of these Terms of Use against future claims of S’whales on the Business Seller. S’whales is entitled to postpone payment to the Business Seller if, in the opinion of S’whales, this is necessary to protect its Platform, Customers, third parties or good name, or if there is a suspicion that the Business Seller is in violation of acts with these conditions, including, but not limited to, the situation where there are indications that ordered and paid Items will not be delivered to Customers due to scarcity or fraudulent conduct.
  3. All amounts to be received from the Business Seller in accordance with these Terms of Use are immediately due and payable. S’whales is entitled to offset all amounts to be received from the Business Seller in accordance with these User Terms and Conditions, or amounts to be received under any other agreement concluded with the Business Seller, such as the Advertising Terms and Conditions to Advertising via S’whales, against the next payment of the payments received by S’whales as referred to in article 6.2. S’whales can also choose to send an invoice for these amounts, which the Business Seller must pay within the period stated on the invoice. If S’whales decides not to settle, it can suspend the payment as referred to in Article 6.2, as long as the Business Seller owes amounts to S’whales under these Terms of Use or under any other agreement concluded with S’whales.
  4. Business Sellers are responsible for purchasing parcel stamps by themselves to ship and track their orders. They use the transport services of the relevant carriers to send Items to Customers. The Business Sellers are further obligated to communicate to the customer any pertinent information requested regarding the shipment, as mandated within the Environment. This includes, but is not limited to, details such as shipping status, shipping provider, date of shipment, and tracking number.
  5. Business Sellers are also responsible for purchasing return stamps by themselves with the relevant carrier to ship back and track their returns. After purchasing return stamps, the relevant carriers collect Items from Customers who return these Items free of charge to the Business Seller. The carriers transport the Items to a location specified by the Business Seller. The Business Sellers are further obligated to communicate to the customer any pertinent information requested regarding the return shipment, as mandated within the Environment. This includes, but is not limited to, details such as shipping status, shipping provider, date of shipment, and tracking number. 
  6. The operational procedures and additional terms regarding parcel stamps and return stamps are outlined on the Support pages for Business Sellers. The Business Seller is bound by and complies with these operational methods and terms.
  7. The Business Seller acknowledges that S’whales is not a party to the agreement entered into by the Business Seller with the carrier for parcel stamps and/or return stamps. S’whales is neither responsible nor liable for the execution and performance of the transportation services.
  8. If an Item is lost in the shipping or return process, S’whales is not responsible for the loss and will not reimburse the sales value of the Item nor the Fee to the Business Seller. The Business Seller cannot derive any rights for the future from the payment of compensation.

Article 8 - E-mail communication between the Business Seller and the Customer

  1. S’whales has built an e-mail application for the purpose of communication between the Business Seller and the Customer (including the after-sales obligations as mentioned in Article 5.6 of these Terms of Use), which enables both the Business Seller and the Customer to contact each other via e-mail through their respective accounts. This does not affect the Customer’s right to contact the Business Seller by telephone.
  2. S’whales may, if it has legitimate reasons to do so, (temporarily) block contact via the e-mail application, for example in case of (suspicions of) fraud by the Business Seller.
  3. All communications passing through this e-mail application are stored by S’whales on its servers and can be viewed and used by S’whales to:

a. support the Business Seller and/or the Customer in case of questions and/or problems;
b. assess whether the Business Seller complies with the provisions of Appendix 2 (SLA) and Article 11.2 of these User Terms and Conditions; and
c. analyse process improvements.

4. The Business Seller hereby explicitly consents and authorises S’whales to store, view and use the communications made via this e-mail application in accordance with the provisions of paragraph 2 of this article.
5. Communications made through this e-mail application will be stored by S’whales for a maximum of two years.

Article 9 - Use of Content

  1. If the Business Seller offers Articles via the Platform that are included in the product offering, the so-called catalogue, of S’whales, the offer of the relevant Article of the Business Seller on the Platform, insofar as available to S’whales, is accompanied by an image together with related information displayed by S’whales.
  2. The Business Seller only acquires the non-exclusive non-transferable right to use the Content in accordance with these Terms of Use and exclusively for the purpose of sales through the Platform. In doing so, the Business Seller shall immediately follow all possible instructions given by S’whales from time to time. The Business Seller shall never use the Platform in a misleading manner or in a manner that is harmful to S’whales. If the Business Seller makes any changes to existing Content, these changes must comply with the content requirements set by S’whales in this article, which requirements may be amended by S’whales from time to time, taking into account Article 21(3) of the User Terms and Conditions.
  3. If the Business Seller wishes to offer Articles on the Platform, about which S’whales has no information available, the Business Seller must provide S’whales with the required (product) information. This (product) information must comply with the content requirements set by S’whales in this Article, which requirements may be amended by S’whales from time to time, taking into account Article 21 paragraph 3 of the User Terms and Conditions.
  4. The Business Seller guarantees that:

a. the Article descriptions do not contain references to discounts, guarantee schemes, “sales slogans” or other products;
b. the Article Descriptions do not contain URLs to own or other websites;
c. the images, do not contain discount labels, watermarks, company names and/or company logos;
d. the (product) information provided does not infringe the rights of third parties including, but not limited to, intellectual property rights (e.g. trademark rights and copyrights);
e. the (product) information provided does not incite, contribute, encourage or instruct the commission of terrorist offences or promote participation in the activities of a terrorist group;
f. the added certifications (on the product) must be in accordance with the certifications linked to the product, proven to S’whales, and cannot be changed after S’whales has checked and published the product. In case of a necessary change to these certifications, the Business Vendor shall contact S’whales and provide proof of the new certifications linked to the product.
g. the information and descriptions provided by the Professional Seller must be in English, French and Dutch.

5. Business Seller hereby grants S’whales a non-exclusive, transferable licence to use, reproduce and disclose the (product) information obtained from Business Seller without restriction, worldwide and forever, in all media, now known or yet to be developed in the future. Business Seller warrants that it is authorised to grant this licence (possibly already now for the time being).
6. S’whales is at all times entitled to remove, modify or adapt supplied (product) information.
7. S’whales is not obliged to use (product) information provided by the Business Seller or to display such (product) information on the Platform.
8. The Business Seller must provide the (product) information to S’whales according to the terms and conditions as included on the Support Pages for Business Sellers.
9. The Business Vendor shall fully indemnify S’whales for all damages and/or costs of whatever nature arising from the non-performance of one or more obligations of this Article 9.

Article 10 - Data

  1. By opening a Seller Account and accepting the Terms of Use (see art. 2.2.), S’whales gains access to the completed business data of the Business Seller. In doing so, S’whales has insight into the offer data, including product data. This includes the EAN code, product category, selling price, number of items in stock and product information. If the Business Seller has sold articles, S’whales also gains insight into the order data (such as turnover including and excluding VAT, sales, name, address and place of residence (hereafter: “NAW data”), performance data (such as Track and Trace code, returns and cancellations) and customer case data (such as customer number and customer demand category). S’whales also has insight into the data of all Business Sellers on the Platform. This information is used to visualise the size of the Platform.
  2. The Business Seller has insight into its own data generated by it, including offer data, product data, order data, performance data and customer business data. S’whales has access to all data provided by Business Sellers (see paragraph 1). Business Sellers only have access to data provided by themselves or generated by sales of their Items. They do not have access to data from other Business Sellers, for privacy, business confidentiality and competition law reasons.
  3. Some data generated by S’whales on the Platform are provided to third parties to enable them to map the online sales market. This does not concern information about (parts of) the online sales market that cannot be traced back to individual Business Sellers. The data shared with third parties is limited to turnover and sales figures over a selected period. S’whales provides this information on the basis of a legal obligation or from commercial considerations. In addition, if required by law, S’whales may provide (personal) data on Business Sellers including turnover and sales figures and Chamber of Commerce numbers to a government agency. This concerns information that can be traced back to individual Business Sellers.

Article 11 - Privacy

  1. S’whales only provides the Business Seller with the personal data of the Customers (hereinafter: “Customer Data”) insofar as these Customer Data are necessary for the Business Seller to execute the Purchase Agreement, including the so-called after-sales obligations, or when the Customer has given his consent to do so. It concerns in any case the name and address details and the telephone number if a delivery appointment has to be made.
  2. The Business Seller guarantees that it will only approach the Customers in connection with the performance of the Purchase Agreement and the obligations arising from the Purchase Agreement and will never commercially exploit or use Customer Data. The Business Seller shall only use and include the Customer Data in one of its databases to perform its obligations as mentioned above and to comply with its accounting obligation. Even after termination of the Seller Account, the Business Seller shall not be entitled to commercially exploit or use Customer Data. In case of violation of the provisions of this article, the Business Seller shall be liable for all damages suffered by S’whales.
  3. The Business Seller shall treat all Customer Data in accordance with all applicable laws and regulations (including but not limited to the General Data Protection Regulation).
  4. S’whales does not guarantee the accuracy of the (personal) data (supplied by Customers).

Article 12 - Ranking

  1. On the Platform, Articles are presented according to different ranking mechanisms, namely via a. the list page, b. the search page, c. the product page and d. the recommendations.
  2. The ranking mechanisms mentioned in paragraph 1 each use different parameters, which will be explained below:

a. The list page is the page displayed after using the drop-down menu on the Platform. Which Articles appear on a list page is determined by the category the Articles are placed in. The list page reflects the Articles in the relevant category. The order of the Articles on a list page is determined by an algorithm that determines the popularity score. This algorithm uses customer interaction data, where the past few days are important. These include:

i. the number of sales of an Article;
ii. the number of clicks on an Article;
iii. the publication date of an Article.

The Business Seller can move higher up the list page by advertising.

b. The search page is the page displayed after using the search bar on the Platform. Which Articles appear on a search page is determined by a combination of a popularity score (see (i) above) and a so-called ‘relevance score’. The relevance score is determined based on the information known about the Articles, including their title and specifications. In this way, an Article can ‘match’ to a greater or lesser extent, yielding a relevance score. Business Sellers can rank higher on the search page by advertising.
c. If several Business Sellers offer the same Article on the Platform, S’whales tries to serve the Customer by recommending one Business Seller. That Business Seller, based on the so-called ‘buying block algorithm’, has the best offer for the Customer at that time and thus obtains the Buying Block. The main parameters used to value a Business Seller’s offer are:

i. orderability of the Article;
ii. quality of the Article (e.g. new, second-hand, returned, etc.);
iii. price of the Article incl. shipping costs and VAT;
iv. delivery conditions, consisting of:

  1. delivery time of the Article;
  2. delivery time for the Article (e.g. ordered before 23:00, delivered tomorrow);
  3. additional delivery options (e.g. evening and weekend delivery, same-day delivery, pick-up points).

v. performance score of the Business Vendor which is based on:

  1. delivery reliability;
  2. cancellations of orders by Business Seller;
  3. customer reviews;
  4. track and traceability of deliveries.

d. On various pages, S’whales displays recommendations that S’whales expects to be relevant in relation to the Article the Customer is viewing, such as “Others also viewed”. The order of the recommended Articles is determined by an algorithm that determines the popularity score. This algorithm uses customer interaction data, where more recent data is more important than old(er) data. In addition, S’whales uses product information from the catalogue, as mentioned in article 9.1 of the Terms of Use. The information used for customer interaction data and product information includes:

i. which Items Customers who viewed the Item also clicked on;
ii. which Items those Customers ended up buying;
iii. the comparability (of e.g. title, description, brand, category, price etc.) of the Article with possible recommended Articles.

Article 13 - Warranties and obligations

  1. The Business Seller represents and warrants that it is authorised to accept, comply with and grant the rights granted by these Terms of Use as well as the Business Seller Support Pages.
  2. The Business Vendor guarantees that:

a. Only Items are offered which are in stock at the Business Seller;
b. ninety-eight per cent (98%) of the Articles will at all times be delivered within the delivery time stated by the Business Seller on the Platform, unless the Business Seller has agreed on a different delivery time with the Customer;
c. only Articles will be offered in the product categories opened by S’whales;
d. the Articles offered by it are its property, the Articles and the offer are not misleading or otherwise contrary to applicable laws or regulations, that it is authorised to offer these Articles for sale on the Platform and to dispose of them, and that the Articles offered are always the original Articles and are not imitations
e. the offer on the Platform will comply with Dutch, Belgian and French laws and regulations;
f. the Articles are in proper working order and have no defects;
g. the Articles it offers and the (product) information it provides do not infringe any rights (such as, but not limited to, intellectual property rights);
h. the actions of the Business Seller and/or Articles of the Business Seller will not harm the reputation and/or image of S’whales or the Surrounding Area;
i. it acts in accordance with the Terms & Conditions for Purchasing from Other Sellers, as well as all applicable laws and regulations;
j. the (product) information provided does not incite, contribute to, encourage or instruct the commission of terrorist offences or promote participation in the activities of a terrorist group;
k. all information provided by the Business Seller (including in the Seller Account) is correct and complete;
l. it acts at all times in accordance with S’whales’ guidelines and instructions regarding the installation and use of the Platform.

3. The Business Seller shall indemnify S’whales against all damages from claims against S’whales as a result of failure to comply with the warranties of this article.
4. The Business Seller is not allowed to send advertising messages along with the delivery of Articles to the Customers or otherwise deliver commercial messages to the Customers.

Article 14 - Intellectual property rights

  1. S’whales acquires the non-exclusive non-transferable right to use the image and word trademark of the Corporate Seller as long as the Corporate Seller offers Articles on the Platform as well as in communication and advertising in all media for the benefit of (the offer of) the Platform.
  2. The Business Seller acknowledges that all (intellectual property) rights regarding the Environment, the design, the Content and all S’whales Marks and logos are and remain the property of S’whales and may not be used in any way by the Business Seller without the prior written consent of S’whales. The Business Seller shall always fully respect the intellectual property rights and all other rights of an exclusive nature of S’whales and third parties.
  3. The Business Seller shall under no circumstances in its own name, file and/or register any trademark or domain name registration containing the element “S’whales”, “swhales.eu”, “Swhales” and/or “S’whales Marketplace” or any element or logo similar thereto. Any use of S’whales ‘s Trademarks and/or logos by the Business Seller must be subject to prior written approval from S’whales.

Article 15 - Restriction, suspension and termination of Business Vendorship

  1. S’whales is entitled at any time, without giving any reason, not to grant a Business Seller a Seller Account and/or to impose additional requirements for granting a Seller Account.
  2. A Seller Account already created may be blocked, suspended or terminated by S’whales at any time, giving reasons. This will be the case, for example, if S’whales suspects a breach of one or more of the applicable terms and conditions, fraud, the Business Vendor fails to pay S’whales’ invoices, infringement of intellectual property rights of S’whales or third parties, the use of the Seller Account disrupts the proper functioning of S’whales’ Environment or, in S’whales’ opinion, may be detrimental to the good name of S’whales or third parties. This is the case, for example, if a driver of the Selling Account has been involved in another Selling Account that has been closed for violating these Terms of Use.
  3. In the event that S’whales proceeds to terminate a Seller Account, S’whales shall observe a 30-day notice period, except for the situations described in paragraph 4 of this article.
  4. S’whales is entitled to terminate the Seller Account with immediate effect in the event of

a. mandatory national law provides otherwise,
b. S’whales exercises a right of termination for a compelling reason under national legislative provisions, and 
c. the Business Vendor repeatedly fails to comply with the Service Standards or the Terms of Use. Violation of the Terms of Use may result in policy violations and point deductions, with a point total of zero meaning closure of the Seller Account.

5. S’whales is also at all times entitled to no longer provide the functionalities for the Business Seller status.
6. The Business Seller may have the Seller Account closed at any time by sending an email to S’whales’ Partner Service Department (email address: info@swhales.eu) 30 days before the desired termination date.

Article 16 - Consequences of termination of the Business Selling Agency

  1. If the Business Selling Agency is terminated, for whatever reason:

a. the Seller Account is blocked;
b. the Business Seller is no longer entitled to use the Content, the Articles and the S’whales brands (to the extent that such right already existed).

2. The Business Seller cannot claim any compensation from S’whales in connection with the termination of the Business Seller Account by S’whales and the Business Seller hereby waives any right to any (damage) compensation.
3. The data/data received by S’whales from the Business Seller shall remain in the possession of S’whales at all times, regardless of whether the Sales Account is still active or inactive/terminated.

Article 17 - Differential treatment

  1. S’whales aims to make as many functionalities of the Platform as possible available or usable for both S’whales and all Business Sellers.
  2. Currently, there is a differentiated treatment of S’whales on the one hand and Business Sellers on the other hand in the following areas:

a. Product offering: Business Sellers cannot offer returned Articles that cannot be sold as new due to quality issues.
b. Prices, offers and discounts: Business Sellers in all cases determine their own selling price on the Platform and have the possibility to give discounts and make offers. The highlighting of these on the Platform (in e.g. retail campaigns and promotions) is (still) subject to technical restrictions.
c. Classify, highlight and promote Assortment. This includes creating and curating product lists, making recommendations for upsell and cross-sell, adjusting shelf layouts or refinements. For this, Business Sellers currently lacks the tooling, as developing these capabilities on the Platform requires more than the available IT capacity allows. Business Sellers are not allowed to: 

i. send leaflets or samples with an order or 
ii. commercially exploit or use Customer Data 

to prevent Business Sellers from merely “hitching a ride” on the Platform’s reach and directing potential Customers to their own website.

Article 18 - Liability

  1. The Business Seller is fully responsible and liable for the use of the Sales Account.
  2. The Business Seller fully indemnifies S’whales for all damages and/or costs of whatever nature arising from the non-compliance with one or more obligations under these Terms of Use.
  3. The Business Seller undertakes in its activities under this agreement to fully comply with all applicable privacy laws and regulations, such as the General Data Protection Regulation, and indemnifies S’whales against all damages and/or costs of whatever nature in this respect.
  4. Unless there is intent and/or gross negligence on the part of S’whales, S’whales is in no way liable for damage and/or costs of any nature whatsoever of the Business Seller in connection with the use of the Platform, the Sales Account, the Content and/or the Articles, such as – but not limited to – damage and costs resulting from the improper functioning of the Platform, technical malfunctions, incorrect Content information, etc.
  5. If the exclusion of liability referred to in Article 18, paragraph 4, of the Terms of Use is wholly or partially rescinded or annulled by a court of competent jurisdiction, the parties hereby agree that S’whales shall in such event only be liable for demonstrable direct damages/costs (to the exclusion of consequential/indirect damages/costs) and that such liability for such direct damages/costs shall in no event exceed a total of €200 (in words: two hundred euros) per year.

Article 19 - Internal complaint handling system

  1. If the Business Seller is not satisfied with the way S’whales performs its services, the Business Seller may submit a complaint to S’whales free of charge by sending an e-mail to the e-mail address info@swhales.eu.
  2. Within a period of seven working days after receipt of the complaint, as referred to in paragraph 1, a designated employee of S’whales will contact the Business Seller by telephone or in writing to discuss the complaint and (try to) achieve a solution.
  3. In the event that the Corporate Seller and the S’whales employee have not been able to resolve the complaint, the Corporate Seller may submit the complaint free of charge to the S’whales Complaints Committee (hereinafter: “the Complaints Committee”) by emailing the complaint together with a duly substantiated explanation as to why the solution put forward is not sufficient to: info@swhales.eu. The Complaints Committee consists of at least one S’whales employee and is chaired by a S’whales Director.
  4. The Complaints Committee will decide in writing within a period of 30 days after a proper notification (see paragraph 3), unless further investigation is necessary. If this investigation results in the deadline being extended, the Complaints Committee will inform the Business Seller accordingly.
  5. If the Business Seller does not agree with the decision of the Complaints Committee, it may turn to one of the external and independent mediators (as stipulated in Article 20 of the User Conditions).
  6. S’whales will annually publish on the partner platform by 1 March a summary of:

a. the total complaints filed, if any,
b. the main types of complaints and
c. the average time it took to process complaints for the past year.

Article 20 - Mediation

  1. Any Business Seller may refer a dispute to one of the external and independent mediators mentioned in paragraph 2, provided that the Business Seller has gone through the procedure set out in Article 19 of these Terms of Use.
  2. S’whales désigne les deux médiateurs suivants qui peuvent être contactés via le site web : www.e-pom.eu.

a. Bart Neervoort (NL);
b. Willem Meuwissen (BE);
c. Camille Audemard (FR)
d. Or another mediator to be proposed by them or by e-pom.

3. The procedure and costs of mediation are described on the website: www.e-pom.eu. In principle, the costs can be shared proportionately by S’whales and the Business Seller.

Article 21 - Miscellaneous

  1. The Business Seller shall never act as an agent or representative of S’whales and in particular shall not make any promises or undertake obligations for or on behalf of S’whales. The Business Seller shall fully indemnify S’whales for all damages and/or costs of whatever nature arising from the failure to comply with this Article.
  2. The Business Vendor is not entitled to transfer (part of) his/her Business Vendorship to a third party, unless S’whales has given its prior written consent.
  3. S’whales is entitled to change these Terms of Use, the Service Levels (Appendix 2) and the Support Pages for Business Sellers at any time. S’whales shall inform Business Sellers 15 days, or as much longer as S’whales deems reasonable for the Business Seller to make technical and commercial adjustments, prior to the entry into force of the amended Terms of Use. During this period, the Business Seller may terminate its Sales Account as a result of the (proposed) changes, by sending an email to info@swhales.eu. The amendments shall not take effect before the expiry of the aforementioned period. The amended Terms of Use will be published on the Environment. If a Business Seller continues to use its Selling Account after notification of the amended User Terms, it thereby accepts the applicability of the amended User Terms and/or the Support Pages for Business Sellers and thus its termination option expires. It is therefore advisable to consult the Conditions of Use and the Support Pages for Business Sellers before using the Selling Account.
  4. The cancellation period of at least 15 days (see paragraph 3) does not apply if S’whales amends the Terms of Use:

a. based on a legal obligation or 
b. to address an unforeseen imminent danger in connection with protection against fraud, malware, spam, privacy breaches and misuse of personal data or in risks related to cyber security.

The amended Terms of Use will then be effective immediately upon notice and
 publication.
5. If any provision of these Terms of Use should be in conflict with applicable law, such provision shall be amended so as to be in conformity with applicable law, as much as possible taking into account the intent of the provision in question.
6. The Business Seller agrees to S’whales informing it from time to time by email at the email address known to S’whales about the use and possibilities of the Platform and/or Sales Account, such as but not limited to the operation and (any new) (application) possibilities of the Platform and/or Sales Account (so-called service emails).

Article 22 - Applicable Law and Competent Court

  1. The Business Seller Conditions and the Business Seller Status are exclusively governed by Dutch law, and disputes will be submitted to the competent Dutch court in Utrecht.

Appendix 1 - General Terms and Conditions for Business Sales via S'whales

Article 1 - Definitions

In these terms and conditions, the following terms shall have the following meanings:

  1. Additional Agreement: an agreement whereby the Buyer acquires products, digital content, and/or services in connection with a distance contract, and these goods, digital content, and/or services are delivered by the Entrepreneur or by a third party based on an agreement between that third party and the Entrepreneur;
  2. Cooling-off Period: the period within which the Buyer can exercise their right of withdrawal;
  3. S’whales: the private company S’whales b.v. located in Oosterhout, the provider of the Platform;
  4. Day: calendar day;
  5. Digital Content: data produced and delivered in digital form;
  6. Continuous Agreement: a distance contract that involves the regular supply of goods, services, and/or digital content over a specified period;
  7. Durable Medium: any tool, including email, that enables the Buyer or Entrepreneur to store information directed personally to them in a way that allows future consultation or use during a period tailored to the purpose for which the information is intended and that enables the unchanged reproduction of the stored information;
  8. Right of Withdrawal: the Buyer’s ability to withdraw from the distance contract within the cooling-off period;
  9. Buyer: the natural or legal person entering into a distance contract with the Entrepreneur;
  10. Entrepreneur: the legal entity offering products, (access to) digital content, and/or services to Buyers remotely through the Platform;
  11. Distance Contract: an agreement concluded between the Entrepreneur and the Buyer as part of an organised system for distance selling of products, digital content, and/or services, where, up to and including the conclusion of the agreement, only one or more techniques for remote communication are used;
  12. Model Withdrawal Form: the European model withdrawal form included in Appendix I of these terms;
  13. Platform: S’whales’s platform where the Entrepreneur offers their products to Buyers;
  14. Technique for Remote Communication: a means that can be used to conclude an agreement, without the Buyer and Entrepreneur needing to be simultaneously in the same space.

Article 2 - Identity of the Entrepreneur

[ Name of the entrepreneur ] (legal name, possibly supplemented with trade name);

[ The business address ];

[ The visiting address, if different from the business address ];

Phone number: [ and time(s) when the entrepreneur can be reached by phone ];

Email address: [ or another electronic communication method offered to the Buyer with the same functionality as email ];

Chamber of Commerce (KvK) number:

VAT identification number:

If the Entrepreneur’s activity is subject to a relevant licensing system: the details of the supervisory authority.

If the Entrepreneur practices a regulated profession:

  • the professional association or organisation to which they belong;
  • the professional title, the location in the EU or the European Economic Area where it was granted;
  • a reference to the professional rules applicable in the Netherlands and indications of where and how these professional rules can be accessed.

Article 3 - Applicability

  1. These general terms and conditions apply to every offer made by the Entrepreneur on the Platform and to every distance contract concluded between the Entrepreneur and the Buyer through the Platform.
  2. The text of these general terms and conditions will be made available to the Buyer electronically in such a way that the Buyer can easily store it on a durable medium. If this is not reasonably possible, it will be indicated before the distance contract is concluded where the general terms and conditions can be electronically accessed, and that they will be sent to the Buyer free of charge upon request, either electronically or by other means.
  3. In the event that, in addition to these general terms and conditions, specific product or service conditions also apply, the second paragraph applies accordingly, and in case of conflicting conditions, the Buyer can always rely on the provision that is most favorable to them.

Article 4 - The Offer

  1. If an offer has a limited validity period or is subject to conditions, this will be explicitly stated in the offer.
  2. The offer includes a complete and accurate description of the products, digital content, and/or services offered. The description is detailed enough to allow the Buyer to make a proper assessment of the offer. If the Entrepreneur uses images, they are a truthful representation of the offered products, services, and/or digital content. Obvious mistakes or errors in the offer do not bind the Entrepreneur.
  3. Each offer contains sufficient information so that it is clear to the Buyer what the rights and obligations are that are associated with the acceptance of the offer.

Article 5 - The Agreement

  1. The agreement is concluded, subject to the provisions of paragraph 5, at the moment of acceptance by the Buyer of the offer and compliance with the conditions set therein.
  2. If the Buyer has accepted the offer electronically, the receipt of the acceptance of the offer will be confirmed electronically. As long as the receipt of this acceptance is not confirmed, the Buyer can dissolve the agreement.
  3. If the agreement is concluded electronically, the Entrepreneur takes appropriate technical and organisational measures to secure the electronic transfer of data and ensures a secure web environment. If the Buyer can pay electronically, the Entrepreneur will take appropriate security measures for this purpose.
  4. The Buyer must pay the purchase price to S’whales, using one of the payment methods offered by S’whales. Only if payment is made to S’whales, the Buyer has fulfilled the payment obligation.
  5. S’whales will, on behalf of the Entrepreneur, within legal frameworks, ascertain whether the Buyer can meet their payment obligations, as well as all the facts and factors that are relevant for a responsible conclusion of the distance agreement. If, based on this investigation, the Entrepreneur has good reasons not to enter into the agreement, they are entitled to reject an order or request with justification or to attach special conditions to the execution.
  6. The Entrepreneur will provide the following information to the Buyer, in writing or in such a way that it can be stored by the Buyer in an accessible manner on a durable medium, no later than the delivery of the product or digital content to the Buyer:

a. the conditions under which and the manner in which the Buyer can exercise the right of withdrawal, or a clear notification regarding the exclusion of the right of withdrawal;
b. information about warranties and existing after-sales service;
c. the price, including all taxes, of the product or digital content; if applicable, the delivery costs; and the method of payment, delivery, or execution of the distance agreement.
d. the requirements for terminating the agreement if the agreement has a duration of more than one year or is of indefinite duration;
e. if the Buyer has a right of withdrawal, the model withdrawal form.

Article 6 - Right of Withdrawal

For products:

  1. The Buyer can terminate an agreement for the purchase of a product within a cooling-off period of 14 days without providing any reasons. The Entrepreneur may ask the Buyer for the reason for withdrawal but cannot compel the Buyer to disclose their reason(s).
  2. The cooling-off period mentioned in paragraph 1 starts on the day after the Buyer, or a pre-designated third party who is not the carrier, receives the product, or:

a. if the Buyer has ordered multiple products from the Entrepreneur in the same order: the day on which the Buyer, or a pre-designated third party, receives the last product from the Entrepreneur. S’whales may refuse an order of multiple products with different delivery times on behalf of the Entrepreneur, provided the Buyer has been clearly informed of this before the ordering process.
b. if the delivery of a product consists of multiple shipments or parts from the Entrepreneur: the day on which the Buyer, or a pre-designated third party, receives the last shipment or part from the Entrepreneur;
c. for agreements for the regular delivery of products over a specified period: the day on which the Buyer, or a pre-designated third party, receives the first product from the Entrepreneur.

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

3. The Buyer can terminate a service agreement and an agreement for the delivery of digital content not supplied on a tangible medium within 14 days without providing any reasons. The Entrepreneur may ask the Buyer for the reason for withdrawal but cannot compel the Buyer to disclose their reason(s).
4. The cooling-off period mentioned in paragraph 3 starts on the day following the conclusion of the agreement.

Extended cooling-off period for products, services, and digital content not supplied on a tangible medium when not informed about the right of withdrawal:

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

Article 7 - Buyer's Obligations During the Cooling-off Period

  1. During the cooling-off period, the Buyer will handle the product and its packaging with care. The Buyer will only unpack or use the product to the extent necessary to determine the nature, characteristics, and functioning of the product. The principle here is that the Buyer may handle and inspect the product only as they would be allowed to do in a physical store.
  2. The Buyer is only liable for any diminished value of the product resulting from handling the product beyond what is allowed in paragraph 1.
  3. The Buyer is not liable for any diminished value of the product if the Entrepreneur has not provided them with all legally required information about the right of withdrawal before or at the time of concluding the agreement.

Article 8 - Exercise of the Right of Withdrawal by the Buyer and Costs

  1. If the Buyer exercises his right of withdrawal, he shall notify the Entrepreneur within the cooling-off period by means of the model withdrawal form or in another unambiguous manner.
  2. As soon as possible, but within 14 days from the day following the notification referred to in paragraph 1, the Buyer returns the product or hands it over to the Entrepreneur (or an authorised representative). This is not necessary if the Entrepreneur has offered to collect the product himself. The Buyer has in any case observed the return period if he returns the product before the cooling-off period has expired.
  3. The Buyer returns the product with all accessories delivered, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by the Entrepreneur.
  4. The risk and burden of proof for the correct and timely exercise of the right of withdrawal lie with the Buyer.
  5. The Buyer bears the direct costs of returning the product. If the Entrepreneur has not stated that the Buyer must bear these costs or if the Entrepreneur indicates that he will bear the costs himself, the Buyer does not have to bear the costs of the return.
  6. If the consumer withdraws after first expressly requesting that the performance of the service or the supply of gas, water, or electricity that has not been made ready for sale in a limited volume or quantity commence during the cooling-off period, the consumer owes the entrepreneur an amount that is proportional to that part of the commitment that the entrepreneur has fulfilled at the time of withdrawal, compared to the full performance of the commitment.
  7. The consumer does not bear the costs for the performance of services or the supply of water, gas, or electricity that has not been made ready for sale in a limited volume or quantity, or for the supply of district heating if:

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

8. The Buyer does not bear the costs for the full or partial delivery of non-materially delivered digital content if:

a. he has not expressly agreed to the start of the performance of the agreement before the end of the cooling-off period;b. 
he has not acknowledged losing his right of withdrawal when giving his consent; or
c. the Entrepreneur has failed to confirm this statement by the Buyer.

9. If the Buyer exercises his right of withdrawal, all additional agreements are automatically dissolved.

Article 9 - Obligations of the Entrepreneur in case of withdrawal

  1. If the Entrepreneur enables electronic notification of withdrawal by the Buyer, a confirmation of receipt will be sent immediately upon receiving this notification.
  2. S’whales, on behalf of the Entrepreneur, reimburses all payments made by the Buyer, including any delivery costs charged for the returned product, without delay but within 14 days following the day on which the Buyer notifies the Entrepreneur of the withdrawal. Unless the Entrepreneur offers to collect the product personally, S’whales may wait to refund until the Entrepreneur has received the product or until the Buyer demonstrates that they have returned the product, whichever occurs earlier.
  3. S’whales uses the same payment method that the Buyer used for the refund unless the Buyer agrees to a different method. The refund is free of charge for the Buyer.
  4. If the Buyer has chosen a more expensive method of delivery than the cheapest standard delivery, S’whales is not obligated to reimburse the additional costs for the more expensive method.

Article 10 - Exclusion of the right of withdrawal

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

  1. Products or services whose price is tied to fluctuations in the financial market over which the Entrepreneur has no control and which may occur within the withdrawal period;
  2. Agreements concluded during a public auction. A public auction is understood to be a sales method in which products, digital content, and/or services are offered by the Entrepreneur to the Buyer who is personally present or has the opportunity to be present at the auction, conducted by an auctioneer, and where the successful bidder is obliged to take delivery of the products, digital content, and/or services;
  3. Service contracts, after full execution of the service, but only if:

a. the execution has started with the explicit prior consent of the Buyer; and
b. the Buyer has declared that it loses its right of withdrawal once the Entrepreneur has fully performed the contract;

4. Service contracts for the provision of accommodation, if a specific date or period of performance is provided for in the contract and other than for residential purposes, goods transport, car rental services, and catering;
5. Agreements relating to leisure activities, if a specific date or period of performance is provided for in the contract;
6. Products made to the Buyer’s specifications, which are not prefabricated and are manufactured based on the Buyer’s individual choice or decision, or which are clearly intended for a specific person;
7. Products that are perishable or have a limited shelf life;
8. Sealed products that are not suitable for return for reasons of health protection or hygiene and whose seal has been broken after delivery;
9. Products that, by their nature, are irrevocably mixed with other products after delivery;
10. Alcoholic beverages whose price has been agreed upon at the time of the conclusion of the contract, but whose delivery can only take place after 30 days, and whose actual value depends on fluctuations in the market over which the Entrepreneur has no control;
11. Sealed audio, video recordings, and computer software, the seal of which has been broken after delivery;
12. Newspapers, magazines, or periodicals, excluding subscriptions to them;
13. The delivery of digital content other than on a tangible medium, but only if:

a. the execution has started with the explicit prior consent of the Buyer; and
b. the Buyer has declared that it thereby loses its right of withdrawal.

Article 11 - The Price

  1. During the validity period mentioned in the offer, the prices of the offered products and/or services will not be increased, except for price changes due to changes in VAT rates.
  2. In deviation from the previous paragraph, the Entrepreneur can offer products or services whose prices are tied to fluctuations in the financial market and over which the Entrepreneur has no influence, with variable prices. This dependence on fluctuations and the fact that any prices mentioned are indicative will be stated in the offer.
  3. Price increases within 3 months after the conclusion of the agreement are only allowed if they result from legal regulations or provisions.
  4. Price increases from 3 months after the conclusion of the agreement are only allowed if the Entrepreneur has stipulated this and:

a. they result from legal regulations or provisions; or
b. the Buyer has the authority to terminate the agreement from the day the price increase takes effect.

5. The prices stated in the offer of products or services include VAT.

Article 12 - Performance of the Agreement and Additional Warranty

  1. The Entrepreneur ensures that the products and/or services comply with the agreement, the specifications stated in the offer, the reasonable requirements of soundness and/or usability, and the legal provisions and/or government regulations existing on the date of the conclusion of the agreement.
  2. An additional warranty provided by the Entrepreneur, its supplier, manufacturer, or importer shall never limit the legal rights and claims that the Buyer can invoke against the Entrepreneur based on the agreement if the Entrepreneur has failed to fulfill its part of the agreement.
  3. An additional warranty is understood to mean any commitment by the Entrepreneur, its supplier, importer, or manufacturer in which they grant the Buyer certain rights or claims that go beyond what they are legally obligated to do in case of a failure to fulfill their part of the agreement.

Article 13 - Delivery and Execution

  1. The Entrepreneur will exercise the utmost care when receiving and executing product orders and assessing service requests.
  2. The delivery address provided by the Buyer through the Platform will be considered the place of delivery.
  3. In accordance with the provisions of Article 4 of these general terms and conditions, the Entrepreneur will fulfill accepted orders promptly and within 30 days at the latest, unless another delivery period has been agreed upon. If the delivery is delayed or if an order cannot be executed, or only partially, the Buyer will be notified of this no later than 14 days after placing the order. In such a case, the Buyer has the right to terminate the contract at no cost and is entitled to any compensation for damages.
  4. After termination in accordance with the preceding paragraph, the Entrepreneur will ensure that the amount paid by the Buyer is promptly refunded by S’whales.
  5. The risk of damage and/or loss of products rests with the Entrepreneur until the moment of delivery to the Buyer or a representative designated and notified to the Entrepreneur, unless expressly agreed otherwise.

Article 14 - Duration Transactions: Duration, Termination, and Renewal

Termination:

    1. The Buyer can terminate an agreement entered into for an indefinite period and providing for the regular delivery of products (including electricity) or services at any time, subject to agreed termination rules and a notice period of at most one month.
    2. The Buyer can terminate an agreement entered into for a definite period and providing for the regular delivery of products (including electricity) or services at any time at the end of the specified duration, subject to agreed termination rules and a notice period of at most one month.

    The Buyer can terminate the agreements mentioned in the previous paragraphs:

a. at any time and is not limited to termination at a specific time or during a specific period;
b. terminate at least in the same manner as they were entered into;
c. always terminate with the same notice period as the Entrepreneur has stipulated for himself.

Renewal:

3. An agreement entered into for a definite period and providing for the regular delivery of products (including electricity) or services may not be tacitly renewed or extended for a definite duration.
4. Notwithstanding the preceding paragraph, an agreement entered into for a definite period and providing for the regular delivery of daily, news, and weekly newspapers and magazines may be tacitly renewed for a specified duration of up to three months if the Buyer can terminate this extended agreement at the end of the extension with a notice period of at most one month.
5. An agreement entered into for a definite period and providing for the regular delivery of products or services may only be tacitly renewed for an indefinite duration if the Buyer can terminate at any time with a notice period of at most one month. The notice period is at most three months if the agreement provides for the regular, but less than once a month, delivery of daily, news, and weekly newspapers and magazines.
6. An agreement with a limited duration for the regular delivery of daily, news, and weekly newspapers and magazines (trial or introductory subscription) is not tacitly continued and ends automatically after the trial or introductory period.

Duration:

7. If an agreement has a duration of more than one year, the Buyer may terminate the agreement at any time after one year with a notice period of at most one month, unless reasonableness and fairness oppose termination before the end of the agreed duration.

Article 15 - Payment

  1. Unless otherwise stipulated in the agreement or additional terms, the amounts owed by the Buyer must be paid within 14 days after the commencement of the cooling-off period, or in the absence of a cooling-off period, within 14 days after the conclusion of the agreement. In the case of an agreement to provide a service, this period begins on the day after the consumer receives the confirmation of the agreement.
  2. When advance payment is agreed upon, the Buyer cannot assert any rights regarding the execution of the relevant order or service(s) until the agreed advance payment has been made.
  3. The Buyer has the obligation to promptly report inaccuracies in the provided or stated payment details to S’whales.
  4. If the Buyer, residing or established in the Netherlands, fails to meet his payment obligation(s) in a timely manner, he is, after S’whales has pointed out the late payment and S’whales has granted the Buyer a period of 14 days, starting from the day after receipt of the reminder, to still meet his payment obligations, liable for statutory interest on the still outstanding amount. S’whales is also entitled to charge the Buyer the extrajudicial collection costs incurred. These collection costs are at most:

a. 15% on outstanding amounts up to €2,500;
b. 10% on the next €2,500; and 
c. 5% on the next €5,000, with a minimum of €40.

S’whales can deviate from these amounts and percentages to the advantage of the Buyer. The reminder costs for each additional reminder amount to €7.50, increased by the applicable postage costs at the time of dispatch.

5. If the Buyer, residing or established in Belgium, fails to meet his payment obligation(s) in a timely manner, he will receive a free reminder from S’whales. If the Buyer does not pay within the foreseeable payment term as mentioned in the first reminder, the Buyer will be charged late interest, as determined by the Law of August 2, 2002, on combating late payment in commercial transactions, as well as a lump sum compensation as follows: 

a. €20 if the due balance is lower than or equal to €150;
b. €30, increased by 10% of the due amount on the bracket between €150.01 and €500 if the due balance is between €150.01 and €500; and 
c. €65, increased by 5% of the due amount on the bracket above €500, with a maximum of €2,000 if the due balance is higher than €500. 

The reminder costs for each additional reminder amount to €7.50, increased by the applicable postage costs at the time of dispatch.

6. If the Buyer, residing or established in France, fails to meet his payment obligation(s) in a timely manner, he will receive a free reminder from S’whales. If the Buyer does not pay within the foreseeable payment term as mentioned in the first reminder, the Buyer will be charged late interest, as determined by French law, on combating late payment in commercial transactions, as well as a lump sum compensation as follows:

a. €40 if the due balance is lower than or equal to €1,500;
b. €80, increased by 5% of the due amount on the bracket between €1,500.01 and €3,000 if the due balance is between €1,500.01 and €3,000; and
c. €150, increased by 3% of the due amount on the bracket above €3,000, with a maximum of €2,500 if the due balance is higher than €3,000.

The reminder costs for each additional reminder amount to €12, increased by the applicable postage costs at the time of dispatch.

Article 16 - Complaints Procedure

  1. The Entrepreneur has a sufficiently publicised complaints procedure and handles the complaint in accordance with this complaints procedure.
  2. Complaints about the performance of the contract must be submitted to the Entrepreneur within a reasonable time after the Buyer has discovered the defects, fully and clearly described.
  3. Complaints submitted to the Entrepreneur will be answered within a period of 14 days from the date of receipt. If a complaint requires a foreseeable longer processing time, the Entrepreneur will respond within the 14-day period with an acknowledgment of receipt and an indication of when the Buyer can expect a more detailed answer.

Article 17 - Disputes

  1. Dutch law exclusively applies to agreements between the Entrepreneur and the Buyer to which these general terms and conditions apply.

Article 18 - Additional or Deviating Provisions

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

Appendix 1 - Model withdrawal form

Model withdrawal form
(fill in and return this form only if you want to withdraw from the agreement)

To: (For the correct name of the seller, refer to the order information as included in your account on our website.)

For the correct return address, refer to the return information as included in your account on our website.

E-mail: via this form

I/We* hereby inform you that I/we* withdraw from our agreement regarding

  • the sale of the following products: [ the product designation ]*
  • the delivery of the following digital content: [ digital content designation ] *
  • the performance of the following service: [ service designation ] *,

withdraws/withdraw*.

Withdrawn on*/Received on* [ order date for services or receipt for products ]

[ Name of consumer(s) ]

[ Address of consumer(s) ]

[ Signature of consumer(s) ] (only if this form is submitted on paper)

* Delete as appropriate or fill in as applicable.

Appendix 2 - Service Levels Business Sellers

The Business Seller will comply with the following service levels, determining the level of service provided by the Business Seller to the customer:

  • Answer customer inquiries within 24 hours*;
  • Upload the invoice to the customer’s account upon the customer’s request within 24 hours*;
  • Be available by phone on business days (Monday to Friday) between 09:00 and 17:00;
  • Process customer cancellation requests within 24 hours;
  • Process and deliver orders within the promised delivery time;
  • Process received return items within 24 hours.
  • Answer customer inquiries asked in Dutch in the Dutch language, in French in French language and in English in English language.

Business Seller commits to achieving maximum customer satisfaction, reflected in the following standards:

  1. Delivered on time ≥ 98% of the total number of shipments**
  2. Cancellations ≤ 2% of the number of ordered items***
  3. Customer inquiries ≤ 5% of the number of ordered items
  4. Answering Customer Inquiries ≥ 90% of customer inquiries within 8 business hours****
  5. Returns ≤ 5% of the total number of ordered items
  6. Answering the phone ≥ 90% of attempted calls *****
  7. NPS after customer contact Minimum 10 or higher
  8. Overall Review Score Minimum of 8 or higher
  9. Track & Trace number 100% of the total number of package shipments

The service standard is determined over a one-week period, except for the review score. For this, the current overall score displayed on the website applies.

* Saturdays, Sundays, and public holidays are not counted..

** Of all ordered items that we can measure on delivery time, we check if the first delivery attempt falls within the delivery promise indicated by the Business Seller.

*** This percentage is calculated based on cancellations by the Business Seller, cancellations by Customers after the promised delivery date, and automatic cancellations due to orders that have expired because the Business Seller did not confirm them on time.

**** This percentage is calculated based on all customer inquiries that the Business Seller receives by email and in the sales account from the Customer or forwarded from the S’whales customer service. Customer inquiries must also be answered within this period if S’whales has temporarily blocked the Business Seller’s Sales account.

***** On business days (Monday to Friday) between 9:00 AM and 5:00 PM.

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