Szolgáltatási feltételek
7. RIGHT OF WITHDRAWAL
7.1. Pursuant to Directive 2011/83/EU of the European Parliament and of the Council, as well as Government Decree 45/2014. (II.26.) on the detailed rules of contracts between consumers and businesses, the Consumer is entitled to a right of withdrawal without giving any reason.
The consumer may exercise the right of withdrawal or termination in the case of:
a) contracts for the sale of goods:
aa) the product itself,
ab) in the case of multiple products, if delivery occurs at different times, the last delivered product,
ac) in the case of goods consisting of multiple lots or pieces, the last delivered lot or piece,
ad) if the product is supplied regularly within a defined period, the first delivery,
within 14 days from the date of receipt by the consumer or a third party other than the carrier and indicated by the consumer.
If the Service Provider fails to provide this information, the 14-day withdrawal period shall be extended by twelve months.
If the Service Provider provides the required information within 12 months after the date of receipt of the product or conclusion of the service contract, the withdrawal period shall expire 14 days after the date of communication of that information.
7.2. The Consumer may exercise the right of withdrawal by making a clear statement to this effect or by using the model declaration set out in Annex 2 of Government Decree 45/2014. (II.26.).
7.3. The withdrawal period expires 14 days after the day on which the Consumer or a third party other than the carrier and indicated by the Consumer takes receipt of the product.
7.4. The Consumer may also exercise the right of withdrawal between the date of conclusion of the contract and the date of receipt of the product.
7.5. The direct cost of returning the product shall be borne by the Consumer; the business has not undertaken to bear this cost.
7.6. In case of exercising the right of withdrawal, the Consumer shall not incur any costs other than the direct cost of returning the product.
7.7. The Consumer shall not be entitled to the right of withdrawal in the case of a non-prefabricated product made on the basis of the Consumer’s instructions or at their explicit request, or in the case of a product clearly personalized for the Consumer.
7.8. The Consumer shall also not be entitled to exercise the right of withdrawal (full list of exceptions under the regulation):
a) in the case of a service contract, after the service has been fully performed, however, if the contract imposes a payment obligation on the consumer, only if performance began with the consumer’s prior express consent and acknowledgment that they lose the right of withdrawal once the business has fully performed the contract;
b) goods or services whose price depends on fluctuations in the financial market beyond the control of the business, even within the withdrawal period specified in Section 20 (2);
c) non-prefabricated goods made to the consumer’s specifications or clearly personalized;
d) perishable goods or goods with a short shelf life;
e) sealed goods which are not suitable for return for health protection or hygiene reasons after opening following delivery;
f) goods which, after delivery, are inseparably mixed with other goods;
g) alcoholic beverages whose price depends on market fluctuations beyond the business’s control and whose delivery takes place more than 30 days after contract conclusion;
h) service contracts where the business visits the consumer at the consumer’s express request for urgent repair or maintenance;
i) sealed audio or video recordings or computer software if the seal has been broken after delivery;
j) newspapers, periodicals, and magazines, except subscription contracts;
k) contracts concluded at public auctions;
l) contracts for accommodation (except residential services), transport, car rental, catering, or leisure activities with a specified date or period;
m) digital content not supplied on a tangible medium, if performance began with the consumer’s express prior consent and acknowledgment of losing the right of withdrawal, and the business provided confirmation as required.
Hygienic products: Swimwear, underwear, sexy clothing
These products come into contact with intimate body parts during fitting; therefore, for hygiene reasons, they cannot be exchanged or returned. (Nobody tries on a bikini top over a bra! It is not proven that bottoms are tried on over underwear.)
For hygienic products such as swimwear, underwear, and sexy clothing, the right of withdrawal cannot be exercised under the law.
7.9. The Service Provider shall refund the total amount paid by the Consumer without delay, but no later than 14 days from the date it becomes aware of the withdrawal, including costs related to performance. However, the Service Provider has a right of retention.
7.10. The refund shall be made using the same payment method as the original transaction, unless the Consumer expressly agrees to another method; no additional costs shall be charged to the Consumer.
7.11. The Consumer must return the goods without undue delay, but no later than 14 days from the notification of withdrawal. If the business also sells goods in a physical store, and the Consumer exercises the right of withdrawal in person at the store, they may return the goods at the same time. Written withdrawal is considered timely if sent within 14 days.
7.12. It is sufficient for the Consumer to send the withdrawal statement within 14 days.
7.13. The Consumer complies with the deadline if the goods are sent back before the 14-day period expires.
7.14. The Consumer bears only the direct cost of returning the goods.
7.15. The Service Provider is not obliged to reimburse any additional costs resulting from the Consumer choosing a delivery method other than the cheapest standard offered.
7.16. The Service Provider may withhold reimbursement until the goods have been received back or the Consumer has provided proof of return, whichever is earlier.
7.17. If the Consumer wishes to exercise the right of withdrawal, they may notify the Service Provider in writing (including via the attached form), by phone, or in person. In case of postal notification, the date of posting is considered; in case of telephone notification, the date of the call is considered. The product may be returned via post or courier.
7.18. The Consumer is liable only for any depreciation resulting from handling beyond what is necessary to establish the nature, characteristics, and functioning of the product.
7.19. The detailed rules of contracts between consumers and businesses (Government Decree 45/2014. (II.26.)) can be found here.
7.20. Directive 2011/83/EU of the European Parliament and of the Council can be found here.
7.21. The Consumer may also contact the Service Provider regarding other complaints using the contact details in these Terms and Conditions.
7.22. The right of withdrawal applies only to users who qualify as consumers under the Civil Code.
7.23. The right of withdrawal does not apply to businesses, i.e., persons acting within the scope of their profession, independent occupation, or business activity.
7.24. (Applicable only if the Service Provider also offers services.) If the Consumer terminates a distance contract after performance has begun, they must pay a proportionate fee for the services performed up to the time of termination.
The proportionate amount shall be calculated based on the total contractual consideration including tax.
If the Consumer proves that the calculated amount is excessively high, the proportion shall be based on the market value of the services provided until termination.
7.24.1. If the Consumer wishes to exercise the right of withdrawal, they must notify the Service Provider via the contact details provided.
7.24.2. The Consumer exercises the right of withdrawal in time if the declaration is sent before the 14-day deadline expires.
7.24.3. The Consumer must return the product no later than 14 days after notifying withdrawal. The deadline is met if the product is dispatched before the 14-day period expires.
7.24.4. The Service Provider is not required to reimburse additional costs arising from a delivery method other than the cheapest standard option.
7.24.5. In the case of multiple products delivered separately, the withdrawal period starts from the last product received.
7.24.5. Return of underwear, swimwear, and striptease clothing in webshops – European and Hungarian legal background
EU Directive
In the case of webshops (distance contracts), consumer rights, including the 14-day withdrawal right, are primarily governed by Directive 2011/83/EU of the European Parliament and of the Council on consumer rights.
This directive provides the 14-day withdrawal right but also sets out exceptions.
The hygienic exception is contained in Article 16(e):
“sealed goods which are not suitable for return for health protection or hygiene reasons once unsealed after delivery”
Implementation into Hungarian law
The directive is implemented in Hungarian law through Government Decree 45/2014. (II.26.).
The same rule appears in Section 29 (1) e):
(The consumer may not exercise the right of withdrawal in the case of sealed goods which are not suitable for return for health protection or hygiene reasons once opened after delivery.)
Conditions of application
For underwear and similar products, withdrawal exclusion is not automatic. The following conditions must all be met:
- Sealed packaging or hygiene seal
- Health or hygiene justification
- Opening of the packaging or removal of the seal
If the consumer has not opened the packaging, they retain the withdrawal right.
Practical guidance for webshops
- Clearly indicate hygienic nature of the product
- State sealed packaging/hygiene protection
- Inform that opening the seal removes withdrawal rights
Sources
[1] Directive 2011/83/EU of the European Parliament and of the Council
[2] Government Decree 45/2014 (II.26.)
8. WARRANTY
Defective performance
The obligor performs defectively if the service does not meet the quality requirements stipulated in the contract or by law at the time of performance.
The obligor does not perform defectively if the entitled party knew of the defect at the time of conclusion of the contract, or should have known of the defect at that time.
In a contract between a consumer and a business, any stipulation that deviates from the provisions of this chapter on statutory warranty and guarantee to the detriment of the Consumer shall be null and void.
User qualifying as a business: a person acting within the scope of their profession, independent occupation, or business activity.
8.1. In what cases may the User exercise warranty rights for defects?
In the event of defective performance by the Service Provider, the User may assert warranty claims against the Service Provider in accordance with the rules of the Civil Code.
8.2. What rights does the User have under warranty claims?
The User – at their choice – may assert the following warranty claims:
they may request repair or replacement, unless fulfilling the chosen claim is impossible or would result in disproportionate additional costs for the business compared to fulfilling another claim.
If repair or replacement was not requested or could not be requested, the User may request a proportional reduction of the consideration or – as a last resort – may withdraw from the contract.
The User may switch from one chosen warranty right to another, but the cost of such change shall be borne by the User, unless it was justified or caused by the business.
The consumer is also entitled – proportionate to the severity of the breach – to request a proportional reduction of the consideration or to terminate the sales contract if:
a) the business failed to carry out repair or replacement, or carried it out but failed in whole or in part to remove and reinstall the goods, or refused to bring the goods into conformity;
b) a repeated defect occurs despite the business having attempted to bring the goods into conformity;
c) the defect is of such gravity that it justifies immediate price reduction or immediate termination of the sales contract; or
d) the business has refused to bring the goods into conformity, or it is evident from the circumstances that the business will not do so within a reasonable time or without significant detriment to the consumer.
If the consumer seeks termination of the sales contract due to defective performance, the burden of proof is on the business to show that the defect is insignificant.
The consumer is entitled to withhold part or all of the remaining consideration – proportionate to the breach – until the business fulfils its obligations regarding conformity and defective performance.
The reasonable deadline for repair or replacement shall be calculated from the time the consumer notifies the business of the defect.
The consumer must make the goods available to the business for the purpose of repair or replacement.
The business shall ensure, at its own expense, the return of the replaced goods.
If repair or replacement requires the removal of goods that were installed in accordance with their nature and purpose before the defect became apparent, then the obligation to repair or replace includes removal of the non-conforming goods and installation of the replacement or repaired goods, or bearing the costs of such removal and installation.
A price reduction is proportional if its amount equals the difference between the value of goods if properly performed and the value of goods actually received by the consumer.
The consumer may terminate the sales contract by a legal statement addressed to the business expressing the decision to terminate.
If the defect affects only a part of the goods supplied under the sales contract, and conditions for termination are met with respect to those goods, the consumer may terminate the contract only in respect of the defective goods, but may also terminate it in respect of any other goods acquired together with them if it cannot reasonably be expected that the consumer retain only conforming goods.
If the consumer terminates the sales contract in whole or in part:
a) the consumer must return the affected goods to the business at the business’s expense; and
b) the business must immediately refund the purchase price paid for the affected goods once it has received the goods or proof of their return.
8.3. Within what time limit may the User enforce warranty claims?
The User (if qualifying as a consumer) must notify the defect without delay after its discovery, but not later than two months from discovery.
However, please note that after two years from performance (or one year in the case of business or used products), warranty rights may no longer be enforced.
(In the case of products with an expiry date, warranty claims may be enforced until the end of the expiry period.)
If, in the case of goods containing digital elements, the sales contract provides for continuous supply of digital content or digital services for a specified period, the business is liable for defects relating to digital content or services if the defect occurs or becomes detectable:
a) within two years from performance for continuous supply not exceeding two years; or
b) throughout the entire duration of continuous supply exceeding two years.
8.4. Against whom may warranty claims be enforced?
The User may enforce warranty claims against the Service Provider.
8.5. What other conditions apply to enforcement of warranty rights (if the User qualifies as a consumer)?
Within one year from performance, no condition other than notifying the defect is required to enforce warranty rights, provided the User proves that the product or service was supplied by the webshop operator.
After one year from performance, however, the User must prove that the defect recognised by them already existed at the time of performance.
Product warranty
8.6. In what cases may the Consumer exercise product warranty rights and what rights do they have?
In case of a defect in movable goods, the Consumer may – at their choice – exercise either statutory warranty rights or product warranty rights in accordance with the Civil Code.
Under product warranty, the Consumer may request repair or replacement of the defective product.
8.7. Against whom may product warranty claims be enforced?
Product warranty rights may be enforced against the manufacturer or distributor of the product (hereinafter jointly: manufacturer).
8.8. When is a product considered defective?
A product is defective if it does not meet the quality requirements in force at the time of placing on the market, or if it does not have the characteristics described by the manufacturer.
8.9. Within what time limit may product warranty claims be enforced?
The Consumer may enforce product warranty claims within two years from the date the product was placed on the market by the manufacturer.
After this period, this right is lost.
8.10. What burden of proof applies in product warranty claims?
In enforcing product warranty claims, the Consumer must prove that the product defect existed at the time of placing on the market by the manufacturer.
8.11. In what cases is the manufacturer exempt from product warranty liability?
The manufacturer is exempt if they can prove that:
- they did not manufacture or distribute the product in the course of their business activity; or
- the defect was not detectable at the time of placing on the market according to the state of scientific and technical knowledge; or
- the defect results from legal or mandatory regulatory provisions.
To be exempt, the manufacturer needs to prove only one of the above reasons.
Please note that the Consumer may assert warranty and product warranty claims simultaneously against the business and the manufacturer for the same defect.
If product warranty claims are successfully enforced, warranty rights regarding the replaced product or repaired part may thereafter be asserted only against the manufacturer.
8.12. In the case of a contract between consumer and business, it shall be presumed until proven otherwise that a defect discovered within one year after performance already existed at the time of performance, unless this presumption is incompatible with the nature of the goods or the type of defect.
Accordingly, the Service Provider is not liable under warranty or guarantee if it can prove that the damage resulted from improper or negligent handling after the transfer of risk, excessive use, or other impacts deviating from normal use, or from non-intended use of the product.
9. PROCEDURE IN CASE OF WARRANTY CLAIMS (FOR USERS QUALIFYING AS CONSUMERS)
Hajdú-Bihar County Conciliation Board:
Debrecen, 4025 Debrecen, Petőfi tér 10.
Office: 4025 Debrecen, Vörösmarty u. 13–15.
Phone: (52) 500-710; (52) 500-745
Fax: (52) 500-720
Chair: Dr. Zsolt Hajnal
Website: https://www.hbmbekeltetes.hu
E-mail: bekelteto@hbkik.hu
Pest County Conciliation Board:
Budapest, 1055 Budapest, Balassi Bálint u. 25. IV/2.
Phone: +36 1 792 7881
Chair: Dr. Pál Koncz
Website: www.pestmegyeibekelteto.hu; www.panaszrendezes.hu
E-mail: pmbekelteto@pmkik.hu
11.7. The conciliation body is competent to resolve consumer disputes out of court. Its task is to attempt to reach an agreement between the parties; if unsuccessful, it decides the case to ensure simple, fast, efficient, and cost-effective enforcement of consumer rights.
11.8. In the case of cross-border consumer disputes arising from online sales or online service contracts, the chamber designated by the minister responsible for consumer protection operates the competent conciliation body.
11.9. The business is obliged to cooperate in conciliation body proceedings, including submitting its response within the time limit defined by law. With the exception of Regulation (EU) No 524/2013, the business must ensure the participation of an authorised representative in the hearing.
11.10. If the Consumer does not turn to a conciliation body, or if the procedure is unsuccessful, the Consumer may bring the dispute before a court. The action must be initiated by a statement of claim containing:
• the court seized;
• the names, addresses, and procedural positions of the parties and their representatives;
• the asserted right and the facts and evidence supporting it;
• data establishing jurisdiction and competence;
• a clear request for the court’s decision.
The statement of claim must be accompanied by the document or its copy referred to as evidence.
12. COPYRIGHT
12.2. Any material taken from https://www.divaswimsuit.com, https://www.divaswimsuit.com website and its database may only be used with written permission and only with reference to the respective website.
12.3. The Service Provider reserves all rights to all elements of its service, its domain names, secondary domain names created from them, as well as its online advertising surfaces.
12.4. It is prohibited to adapt or reverse engineer the content or any parts of https://www.divaswimsuit.com, https://www.divaswimsuit.com website; to unlawfully create user IDs and passwords; and to use any application that allows modification or indexing of the https://www.divaswimsuit.com, https://www.divaswimsuit.com website or any part thereof.
12.5. The name https://www.divaswimsuit.com, https://www.divaswimsuit.com is protected by copyright; its use, except for reference purposes, is only permitted with the written consent of the Service Provider.
12.6. The User acknowledges that in case of unauthorized use, the Service Provider is entitled to a penalty fee. The amount of the penalty fee is HUF 60,000 gross per image and HUF 20,000 gross per word. In case of copyright infringement, the Service Provider applies notarial certification of facts, the cost of which is also borne by the infringing user.
13. DATA PROTECTION
The website’s privacy policy is available at the following page: https://www.divaswimsuit.com
Withdrawal Statement Template
(Only complete and return in case of intention to withdraw from the contract)
To (name, postal address, e-mail address, telephone number):
La Terrazza Kft., 1185 Budapest, Bihar utca 9., office@divaswimsuit.com, +36 20 928 3025
I/We hereby declare that I/we withdraw from the sale of the following goods:
Date of order / date of receipt:
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only in case of written notification):
Date: