General Terms and Conditions of Carriage for the Conveyance of Bulk Letterbox Mail Orange Post N.V.

Transcription

1 General Terms and Conditions of Carriage for the Conveyance of Bulk Letterbox Mail Orange Post N.V. Orange Post N.V. is registered with the Chamber of Commerce in the Netherlands, Registration No

2 Contents 1. Definitions 3 2. Scope of Application 4 3. Offers and Quotations 5 4. Agreements and Cancellations 5 5. Performance of the Agreement 6 6. Content and Handover Standards and Conditions 6 7. Franking 7 8. Delivery 7 9. Tariffs Invoicing and Payment Refusal, Suspension, Surcharge and Cancellation Force Majeure and Change in Circumstances Liability of Orange Post and Lapse of Right Liability of the Client and Indemnification Protection of Personal Data Dispute Settlement, Competent Court and Applicable Law 13 2

3 1. DEFINITIONS In these General Terms and Conditions of Carriage for the Conveyance of Bulk Letterbox Mail the following definitions apply: - Addres(ses): the address of intended recipients of the Postal Items, agreed with the Client where to Postal Items are supposed to be carriage by or on behalf of Orange Post as part of the Delivery Service; - Addressee(s): the intended recipients of the Postal Items; - Agreement: The agreement between Orange Post and the Client concerning the Collection Service and/or Delivery Service of Postal Items by Orange Post commissioned by the Client; - Bulk Mail: Identical Postal Items to be sent to individual Addresses and to be delivered in Letterboxes that are prepared for mailing, processing and delivery in large quantities; - Client: The natural person who or the legal entity that has entered into an Agreement with Orange Post concerning the Collection Service and/or Delivery Service of Postal Items; - Collection Address: The address of Orange Post in the Netherlands or the address of a Postal Outlet elsewhere agreed with the Client where Postal Items are made available by or on behalf of the Client to Orange Post for carriage as part of the Collection Service; - Collection Service: The carriage of Postal Items by Orange Post from the Postal Outlet to the establishment of Orange Post in the Netherlands; - Consignment: a number of Postal Items addressed or unaddressed bulk or batches from the same sender tendered together by the Client to Orange Post for the Conveyance by Orange Post; - Contractors: third parties (such as carriers and postal operators) engaged by Orange Post for executing and/or supporting its performance under the Agreement; - Conveyance: The combination of actions undertaken by Orange Post or its Contractors that result in the performance of the Agreement; - Delivery Service: The carriage of Postal Items by or on behalf of Orange Post from the establishment of Orange Post in the Netherlands or the Postal Outlet to the Delivery Addresses; - General Terms: the general terms and conditions of carriage for the conveyance of letterbox mail of Orange Post as stated below; - Letterboxes: Letterboxes (including letter slots) at the home/establishment of the Addressees or P.O. boxes for the delivery of Postal Items; - Manifest: the document attached to the Trading Agreement in which Orange Post sets out the specific standards, conditions and other requirements of the Consignment and the individual Postal Items regarding shape, packaging, dimension, franking, addressing, size, weight, and other requirements; 3

4 - Orange Post: The limited liability company Orange Post N.V., established in Nieuw-Vennep, the Netherlands; - Postal Items: addressed or unaddressed letters, direct mail, mailings, periodicals and/or other printed documents which can be delivered in the Letterboxes of the Addressees; - Postal Outlet: A Orange Post external hand-over location (hub) outside the Netherlands intended for the acceptance of and/or provision for collection of Postal Items for carriage as part of the Delivery Service and Collection Service; - Sender: The natural person who or the legal entity that sends the Postal Item to the Addressee; - Trading Agreement: the printed document of the Agreement provided by Orange Post to Client; - Website: the website 2. SCOPE OF APPLICATION A. The provisions set out in these General Terms exclusively govern the contractual and legal relationship between Orange Post and to whom Orange Post makes an offer to an Agreement or with whom (the Client) Orange Post enters into an Agreement regarding the Conveyance of Bulk Mail. B. The provisions set out in these General Terms are the only terms and conditions applicable to the Agreement and replace all other terms and conditions, except in the case of a preliminary, express and written derogation by Orange Post. C. Orange Post may be occasionally willing or obliged and reserves the right to amend or make additions to these General Terms or to modify certain provisions of it at any time. Consequently, it is necessary that the Client reads the version in force (published online on the Website on the day of the conclusion of the Agreement). These modifications are enforceable from the date they are published online on the Website and will be applied to Agreements after the publishing date. D. Should any provision of these General Terms be unenforceable in law, the remaining provisions of these terms and conditions shall remain in force, and instead of the invalid one a legally valid provision shall apply, which approximates the meaning of the original provision as far and close as possible. E. These General Terms are effective from September the 1 st, 2018 onwards. 4

5 3. OFFERS AND QUOTATIONS A. Any offer or quotation which Orange Post presents to Client shall be not binding, unless a time frame has been set in the offer/quotation. The service frames mentioned in brochures by Orange Post as well as numbers, sizes, weights and rates mentioned are also not binding. B. The prices stated in an offer/quotation by Orange Post are exclusive of VAT, unless explicitly stated otherwise. C. Offers/quotations are based on the information provided by the Client to Orange Post. The Client ensures that all necessary information is provided to Orange Post and that this information is correct. The Client is responsible for the timely delivery to Orange Post of all instructions, documents and data needed for the Conveyance. D. If the service frameworks, numbers, sizes or weights stated in the offers/quotations or brochures are changed, or if deviations are found in the execution of an assignment with the offer/quotation issued for this assignment, then Orange Post will retain the right to charge the alteration or the deviation against the then applicable prices without prior notification to the Client or permission from the Client and to oblige the Client to a payment. E. Offers/quotations can only be accepted in writing. On the occasion that the Client accepts an offer/quotation, Orange Post has the right to revoke the offer/quotation within eight days after receipt of the acceptance, in which case no Agreement has been concluded between the parties. 4. AGREEMENTS AND CANCELLATIONS A. Orange Post and the Client shall enter into an Agreement by means of the Trading Agreement, to this effect provided by Orange Post to the Client and undersigned by the Client. B. If the Trading Agreement is not yet concluded at the time Postal Items have already been handed over by or on behalf of the Client to Orange Post and have been accepted by Orange Post, the Agreement will be formed at that time and will be confirmed afterwards by means of the Trading Agreement, provided by Orange Post to the Client. C. The contents of an Agreement shall be determined by what is stipulated in the aforementioned signed Trading Agreement, the Manifest and the provisions set out in these General Terms. Any subsequent supplement to and/or amendment of an Agreement shall only be binding if Orange Post provides Client with written confirmation to this effect. 5

6 D. Client shall be required to cancel an Agreement by means of a written notice to this effect which he presents to Orange Post, but this shall only be allowed if Orange Post has not yet started with the Conveyance, preparatory activities included. In this case of cancelation the provision of Article 11G will apply. E. Agreements to which these General Terms apply will remain in force if the legal form of Orange Post changes. 5. PERFORMANCE OF THE AGREEMENT A. Without prejudice to the other provisions of these General Terms, Orange Post will make the effort to deliver the Postal Items undamaged to the Addressees stated on each individual Postal Item in accordance with the agreed service levels of the Conveyance. Orange Post provides no guarantee however. B. Orange Post reserves the right and is entitled to place markings on the Postal Items handed over for Conveyance if required for sorting, distribution and/or delivery purposes. C. Without prejudice to its rights and the obligations under the Agreement, Orange Post is entitled to engage third parties (Contractors) to perform, on behalf of Orange Post, part or all of the Agreement. D. The Agreement between the Client and Orange Post does not entitle an Addressee to delivery of the Postal Items. There is no contractual or legal relationship whatsoever between an Addressee and Orange Post, and an Addressee cannot invoke these General Terms. 6. CONTENT AND HANDOVER STANDARDS AND CONDITIONS A. Orange Post limits its Conveyance services to Postal Items regarding regular addressed or unaddressed letters, direct mail, mailings, periodicals and/or other printed documents which can be delivered in the Letterboxes of the intended recipients of the Postal Items. B. The Conveyance of live animals, substances and fluids, fragile contents, money (coins and billets), checks and in general prohibited, valuable and/or dangerous contents are explicitly excluded from the Orange Post Conveyance services. C. Consignments may be tendered to Orange Post by or on behalf of the Client on appointment from Monday to Friday (except on holidays) during the opening hours of the establishment of Orange Post or the Postal Outlet elsewhere. D. The Client shall hand-over the Consignment with the individual Postal Items to Orange Post according to the specific standards and conditions set by Orange Post in the 6

7 Trading Agreement and/or the Manifest or elsewhere regarding shape, packaging, addressing, franking, dimension, size, weight and other requirements, and shall provide Orange Post with the relevant documents needed for the Conveyance by Orange Post. E. When handing over a Consignment, the Client shall provide Orange Post a representative sample of the Postal Items of the Consignments and the Client must complete and sign an order form. Anyone signing the order form on behalf of the Client will be deemed to be the Client s legal representative. 7. FRANKING A. When (specific) franking of the Postal Items is needed for sorting, distribution, carrying and/or delivery of the Postal Items, at the request of the Client Orange Post can provide the required franking services. B. When franking by Orange Post has been agreed, the surcharge is determined in the Trading Agreement and/or the Manifest. 8 DELIVERY A. Depending on the country of destination, the Postal Items are delivered at the Addressees by the local postal operators in the particular country or through Orange Post s other partners, at the discretion of Orange Post, in the manner customary in the country of destination or chosen otherwise by Orange Post. The delivery of the Postal Items at the Addressees will take place on the regular postal working days and hours (except on holidays) in the country of the respective Addressee. B. The Client agrees to all routing and diversion, including the possibility that the Postal Items may be carried via intermediate stopping places. C. Postal Items will be delivered at the Addressees by being deposited in Letterboxes. D. Postal Items will be deemed undeliverable if the Address of an Addressee is incomplete or incorrect, if conditions are such that delivery in the Letterbox is impossible or there is no Letterbox that satisfies the requirements for delivery. Unless otherwise agreed and without prejudice to the other provisions of these General Terms undeliverable Postal Items will be destroyed. 9. TARIFFS A. The tariffs for the Conveyance shall be expressed in euro-currency, and shall be stated in the Trading Agreement, the Manifest and/or otherwise as gross amounts exclusive of value added tax, unless explicitly stipulated otherwise. 7

8 B. All tariffs pursuant to the Agreement shall be subject to any price increase which may be due to circumstances referred to in Article 9C below. C. In the event that, after an Agreement has been concluded, an increase occurs in the price of one or more factors determining the costs involved in the Conveyance, Orange Post shall be entitled to adjust the tariffs for the Conveyance accordingly. Orange Post may avail itself of this right until and on the date on which the Conveyance will start. Orange Post shall notify the Client in writing of such an aforementioned tariff adjustment. D. In the event that the tariff adjustment referred to in Article 9C above amounts to a tariff increase in excess of twenty percent of the tariff originally agreed for the Conveyance, the Client shall be entitled to cancel the Agreement with Orange Post by means of a registered letter addressed to the latter within three days, after Orange Post provides the Client with written notice under the terms of Article 9C, in the absence of which the Client shall be deemed to have assented to the tariff adjustment. E. Orange Post shall at all times be entitled to demand full or partial payment in advance, a deposit and/or additional security for Conveyances to be performed, for the purposes of securing the Client s compliance (or further compliance) with his obligations towards Orange Post pursuant to the Agreement, and the Client shall be required to ensure prompt compliance in full with such demand. 10. INVOICING AND PAYMENT A. Orange Post shall invoice the Client for the Conveyance in accordance with the Agreement. B. The Client shall pay Orange Post s invoices in euro-currency within fourteen days after the invoice-date and in a manner stipulated by Orange Post without any suspension, discount, deduction or setoff against a claim which the Client might have against Orange Post. Should the Client object to an invoice issued by Orange Post, the Client shall notify Orange Post accordingly by means of a registered letter within seven days after the invoice-date, in the absence of which the invoice concerned shall be deemed to have been accepted without dispute. C. In the event that the Client fails to pay an invoice issued by Orange Post in full and/or on time, the Client shall be in default merely by virtue of the expiry of the term of payment, and for each month or part of a month it shall forfeit to Orange Post an immediately due penalty, equivalent to two percent of the sum, which the Client owes to Orange Post pursuant to the Agreement, subject to a minimum of 250.= in each case. D. In the event that the Client remains in default in relation to all or part of any payment owed to orange Post pursuant to the Agreement after receiving a reminder from Orange Post, and Orange Post engages the services of some other party to secure the 8

9 extrajudicial collection of the amount concerned, the Client shall forfeit to Orange Post an immediately due penalty, equivalent to fifteen percent of that amount subject to a minimum of 500,=. E. In the event that the Client remains in default in relation to all or part of any payment owed to Orange Post pursuant to the Agreement following the intervention of a third party as provided for in Article 10D above, and Orange Post institutes legal proceedings to collect the amount concerned, the Client shall be liable for all of the costs which Orange Post incurs in this respect. F. Where the Client is a legal entity, the natural person who entered into the Agreement with Orange Post on the Client s behalf shall be severally liable for the Client s compliance with its obligations towards Orange Post pursuant to the Agreement. G. Any payment made by the Client to Orange Post shall first serve to pay any judicial and extrajudicial collection costs payable to a third party, then any contractual penalties/costs and finally the longest outstanding invoice. 11. REFUSAL, SUSPENSION, SURCHARGE AND CANCELLATION A. Orange Post may, at its discretion, at any time refuse or hold and suspend the Consignment from the Client and/or the (further) Conveyance if in the opinion of Orange Post: 1. The Consignment is tendered by the Client to Orange Post contrary to the in Article 6 mentioned regulations, standards and conditions; 2. The relevant documents supplied by the Client do not comply (in full) with the Consignment and the Postal Items supplied by the Client; 3. The individual Postal Items of the Consignment do not comply (in full) with the relevant Postal Item-sample supplied by the Client; 4. The provision of Orange Post s services could give rise to a conflict with the law and/or mandatory postal conventions; 5. Orange Post for any other valid reason decides to refuse or hold and suspend the Consignment and/or the (further) Conveyance. B. In the event of refusal by Orange Post of the Consignment, the Agreement will be cancelled and terminated, and the Client is liable and due to Orange Post all costs and expenses already made by Orange Post plus a cancellation fee equivalent to fifteen percent of the agreed price for the Conveyance. C. In the event of holding and suspension by Orange Post of the Consignment and/or the (further) Conveyance, Orange Post will consult with the Client. At its discretion Orange Post then may: 1. Cancel and terminate the Agreement, where possible, make the Consignment available for collection by or on behalf of the Client, at Client s expense and risk, return the Consignment to Client or destroy the Consignment, 9

10 2. Enable the Client to timely remedy the relevant deficiencies, and/or 3. Impose the Client a surcharge on the agreed price. D. Orange Post may additionally impose the Client a surcharge if the Consignment is being tendered by or behalf the Client to Orange Post outside the regular opening days and/or hours. E. Orange Post or a third party on behalf of Orange Post is at any time entitled to open the Consignment and the individual Postal Items in order to be able to check and determine whether the Consignment and the individual Postal Items comply with the accompanied documents and all the by Orange Post set requirements. F. Subject to any other rights that Orange Post may hold, Orange Post shall be entitled to cancel all or part of the Agreement or to hold and suspend all or part of the Conveyance by means of a written statement addressed to the Client concerned without any judicial intervention or prior notice of default, in the event that the Client: - fails to fulfil its obligations and duties pursuant to the Agreement in full or on time, applies for a moratorium or is granted one, - is declared bankrupt or an application is filed for its bankruptcy, or - if there are any other circumstances affecting the Client, based on which Orange Post has reason to doubt that the Client is or will be able to fulfil his obligations towards Orange Post pursuant to the Agreement. In this case Orange Post shall not be liable to pay anything (for the purposes of compensation or otherwise) to the Client. G. In case of cancellation of an Agreement as provided for above in this article, Client is liable and due to Orange Post all costs and expenses already made and all losses suffered by Orange Post plus a cancellation fee equivalent to fifteen percent of the agreed price for the Conveyance. 12. FORCE MAJEURE AND CHANGE IN CIRCUMSTANCES A. In the event of force majeure or change in circumstances on the part of Orange Post, Orange Post shall be entitled to cancel all or part of the Agreement unilaterally or to suspend the implementation of all or part of it for a definite or indefinite period of time. This shall explicitly not in any way entitle the Client to the payment of costs, compensation and/or otherwise by Orange Post, nor shall it affect Client s financial obligations towards Orange Post with regard to that part of the Agreement which was implemented prior to the onset of the situation of force majeure or the change in circumstances. B. Here force majeure is deemed to refer to, amongst other things, fire, flooding, theft, weather conditions, molest, a disaster (natural or otherwise), terrorism, an act of war or the threat/danger of war, transport-related problems or otherwise, the prohibition of 10

11 imports, exports and/or transhipments, strikes or work stoppages, or the disruption of business or production experienced by Orange Post or its Contractors, some other form of delay or any other conditions which disrupt Orange Post s normal operations and as a result of which the implementation of the Agreement is delayed or rendered impossible (reasonably or otherwise). 13. LIABILITY OF ORANGE POST AND LAPSE OF RIGHT A. Orange Post will make the efforts to perform the Conveyance properly and judiciously. In the event that the Client is of the opinion that Orange Post has failed to comply with its obligations pursuant to the Agreement or the law, the Client shall be required to notify Orange Post of this immediately by means of a registered letter. B. The liability of Orange Post for an imputable failure on its part to meet any of its obligations to the Client under the Agreement will be limited in accordance with this Article 13. C. Orange Post s liability is limited to events where damage, missing or loss of Postal Items occurs as a result of intentional acts to cause damage, gross negligence or whether Orange Post acted recklessly. D. Orange Post will not be liable for damage, missing or loss of Postal Items caused as a result of circumstances that a judicious carrier could not have been expected to avoid, to the extent that a postal carrier could not have been expected to prevent the consequences of the aforementioned circumstances. E. Orange Post will not be liable for damage, missing or loss of Postal Items as a result of the nature of or a defect in the contents of the Postal Item, inadequate packing, any cause attributable to the Client, arrest or seizure on Postal Items by competent authority, incorrect or incomplete Address and/or as a result of force majeure or change circumstances as stipulated in Article 12. F. Subject to what is stipulated elsewhere in these General Terms and also to what is provided in this Article 13, Orange Post shall under no circumstances be liable towards the Client for trading loss, moral loss, consequential or indirect loss of any kind whatsoever, which is deemed to include loss of earnings and foregone savings, nor for any loss suffered by the Client and/or its customer due to the failure to meet a deadline. G. Orange Post declines all liability for any interruption, technical problems or malfunctions of its Website, functioning and/or any other occurrence of technical problems or malfunctions, access problems, any inaccuracy or omission concerning the information available on the Website, any damages resulting from fraudulent intrusion by a third party leading to modification of the information available on the Website. 11

12 H. When Orange Post engages third parties (Contractors) to fulfill part of all of the Agreement, on behalf of Orange Post, in addition to the provisions of this Article 13, the liability of Orange Post towards the Client for that part of the execution of the Agreement will be limited to the liability of the relevant third party towards Orange Post. I. Having regard to the provisions in this Article 13 and since, in compliance to Article 6B, a Postal Item will be deemed to be of no value, in the event that Orange Post is liable towards the Client and the liability is established beyond all reasonable doubt, the liability shall at any rate be limited to an amount equal to 2.50 per kilogram of the concerned Consignment and Postal Items with a maximum of 2,500.= per Consignment, except where agreed otherwise in the Agreement. J. To qualify for compensation, a claim must be submitted to Orange Post at the earliest possible opportunity or within fourteen days after the damage is discovered. In order to claim compensation within the meaning of Article 13I is required to submit supporting documents, such as the original proof of posting, purchase or sales receipt and/or any other legally admissible proof. Orange Post will determine whether the Client is entitled to the aforementioned compensation on the basis of the supporting documents submitted by the Client. K. The Client s right to enforce his entitlement to compliance and/or compensation and the like by means of legal proceedings shall lapse six months after the Client first calls on Orange Post to account for the underlying occurrence. A written demand for performance or a written claim for compensation will preclude any lapse of rights. 14. LIABILITY OF THE CLIENT AND INDEMNIFICATION A. The Client will be liable to Orange Post for damage that the Client s Consignment and/or Postal Items cause due to reasons imputable to the Client to Orange Post, to persons in the services of Orange Post and/or third parties engaged by Orange Post (including Contractors), to company equipment of Orange Post and/or of these third parties or to other postal items. In the latter case, liability will be limited to the amount of compensation that Orange Post is liable to pay to third parties and the expenses made by Orange Post in that respect. B. The Client shall irrevocably and unconditionally hold Orange Post (including its employees, servants, agents, contractors, representatives, insurers and re-insurers) fully harmless from and keep Orange Post (including its employees, servants, agents, subcontractors, representatives, insurers and re-insurers) fully indemnified against all and any losses, damages, fines and expenses whatsoever which it may suffer arising or resulting from any breach or violation by the Client (including its employees, servants, agents, customers, contractors and representatives) of any applicable sanction(s) and/or 12

13 of the representations and warranties contained herein, including non-declaration or illegal, inaccurate and/or inadequate declaration by the Client in respect of the Postal Items or from any other cause in connection with the Postal Items, or the exercise by Orange Post of any all of its rights. 15. PROTECTION OF PERSONAL DATA A. Orange Post and its Contractors use data recorded within the scope of the Agreement for the purposes of carrying out the Agreement. The data is processed in strict accordance with the law regarding postal conveyance. B. Except in the cases referred to in Article 15A Orange Post will not disclose to third parties any personal data or, in general, any information on Postal Items of a personal nature to which it has access in the course of its business, unless agreed otherwise with the person concerned or unless required to do so by law. C. The contents of Postal Items handed over unsealed will only be examined insofar as it is necessary for the Conveyance or, if a Postal Item is undeliverable, to ascertain the Address of the Sender or The Address of the Addressee. D. Sealed Postal Items will only be opened for examination, where necessary in order to ascertain the Address of the Sender or the Address of the Addressee, or pursuant to an court order. 16. DISPUTE SETTLEMENT, COMPETENT COURT AND APPLICABLE LAW A. Any dispute arising in connection with the execution or interpretation of an Agreement must first pass through an amicable settlement stage by a written exchange between The Client and Orange Post, containing a precise description of the complaint and answer. B. If an amicable settlement fails, either party may bring the dispute before the competent court of law in The Hague, the Netherlands, to the exclusion of any other dispute resolution body, subject to the proviso that contrary to the foregoing Orange Post shall be entitled to exercise its own discretion to bring such a dispute before a competent court of law within the jurisdiction or country in which the Client is based. Notwithstanding the foregoing provisions, Orange Post and the Client may jointly decide by means of a written agreement to this effect to resolve the dispute through prior arbitration or mediation. C. All Agreements and related legal relations between Orange Post and the Client shall be solely governed by and construed in accordance with the law of the Netherlands. 13