General terms and conditions

Euro Mail BV

General terms and conditions

DISCLAIMER This document is the translation of an original Dutch text. No rights may be derived from this translation. The original Dutch text is binding under all circumstances. I Introduction 1. These General Terms and Conditions are applied by Euro Mail B.V. and all businesses belonging to Euro Mail B.V. (hereinafter referred to as “Euro Mail”) and replace all previously applicable General Terms and Conditions. 2. The various activities of Euro Mail are referred to below as “Mail”, “IT”, and “Distri”. 3. The provisions in the “General” part of these General Terms and Conditions shall apply to all activities of Euro Mail referred to in subsection 2 above. The provisions in parts B, C, and D of these General Terms and Conditions shall apply specifi cally to one of the activities, with the provisions in the “General” section also applying in full. 4. These General Terms and Conditions, which take effect on 1 January 2008, replace all terms and conditions (of delivery) previously applied by Euro Mail. A. GENERAL II Scope 1. Unless explicitly agreed otherwise in writing, the present General Terms and Conditions shall apply to all offers, recommendations, agreements, and resulting commitments of Euro Mail. 2. These General Terms and Conditions shall be deemed to have been accepted by Client accepting the goods Euro Mail supplies or the services Euro Mail provides for it, unless Parties have explicitly agreed in writing that these General Terms and Conditions will not apply. The applicability of any General Terms and Conditions invoked by the other party is explicitly excluded. III Offers and Prices 1. Unless it has been explicitly provided otherwise in writing, all quotations, price estimates and recommendations shall be provided without obligation and based on the information provided by Client. 2. Prices are exclusive of value-added tax and the costs involved in transport, delivery, assembly, and installation. Euro Mail reserve the right to pass on changes in price resulting from taxation, currency exchange-rate fl uctuations, and price changes imposed by third parties. If this is necessary, Euro Mail will consult with Client. 3. Unless agreed otherwise in writing, all payment obligations pursuant to this agreement shall be discharged in euros. 4. Euro Mail reserves the right to correct manifest errors or mistakes in price estimates. IV Creation of Agreement 1. The date of creation of the agreement shall be deemed to be the date on which Euro Mail accepted the assignment or on which Euro Mail provided goods and/or services. 2. Client shall be deemed to be the party to whom Euro Mail provided the quotation, price estimate, or order confi rmation, or the party that benefi ts from the sale, provision, and/or operation of the goods Euro Mail provides and/or the work Euro Mail carries out. 3. If Client is a legal entity, then the management of that legal entity shall – in accordance with the relevant anti-abuse legislation – be jointly and severally liable in respect of debts owed if the management has failed to properly carry out its duties. V Scope of the Agreement 1. The scope of the agreement shall be restricted to what has been agreed or to what Euro Mail has delivered or performed. 2. If Euro Mail is requested by Client to carry out work that goes beyond what was originally comprised in the assignment, or if Euro Mail is required to do so due to an emergency situation, Euro Mail will carry out said extra work in accordance with the principles of reasonableness and fairness. Client will then be invoiced for said extra work separately from that for which we Euro Mail has already or will invoice Client pursuant to the original assignment. 3. An “emergency situation” as referred to in subsection 2 shall include (with this list not being exhaustive): - the circumstance that the information with which Euro Mail was provided is not in accordance with information previously provided, or is not in accordance with reasonable requirements; - Client is unavailable – for whatever reason – to provide further information regarding the performance of the assignment and – for example as a result of the prevailing pressure of time – Euro Mail must perform the assignment immediately and are required to carry out (extra) work at our own initiative due to the lack of further information. VI Delivery 1. Unless explicitly agreed otherwise, delivery times or completion times shall be approximate, subject to the uninterrupted progress of the work and supply of data and materials. The period for delivery or completion shall commence as soon as Euro Mail has received the data, materials, etc. necessary for Euro Mail to perform the agreement. 2. If the deadline for delivery is exceeded, this shall in no case give grounds for the payment of compensation, even if notifi cation of default has been given. Even if the deadline for delivery is exceeded, this shall not release Client from its obligation to accept the goods ordered or to perform the agreement. All of this shall be unless matters are explicitly agreed otherwise in writing. VII Retention of Title 1. Until such time as Client has complied in full with its fi nancial obligations under any agreement whatsoever, all goods belonging to Euro Mail that Euro Mail sells shall at all times remain the property of Euro Mail. 2. Client shall inform third parties of this retention of title. Client shall not pledge the goods concerned or provide them as security. Client shall inform Euro Mail immediately in the event of the goods being seized or in the event of insolvency or a suspension payments. VIII Right to Retain Possession 1. Should Client fail, completely or partially, to comply with its fi nancial obligations pursuant to an agreement concluded with Euro Mail, Euro Mail shall be entitled to exercise the right to retain possession of all goods that have been provided, either directly or indirectly, to Euro Mail by Client in relation to that agreement. Client warrants Euro Mail that it is authorised to provide these goods and indemnifi es Euro Mail in this regard. Client shall be deemed to have provided all goods that it provides to Euro Mail with the consent of all parties holding title to said goods and pursuant to an authority to represent, power of attorney, or a mandate of some other kind. IX Force Majeure 1. Should it appear during performance of the agreement that the agreement cannot in fact be performed due to circumstances of which Euro Mail was not aware of when the agreement was concluded, Euro Mail shall be entitled to require that the agreement be amended in such a way as to make performance possible, except if performance will be impossible as a result of force majeure [“overmacht’”]. Examples (and not limited to) of force majeure are: strike actions (internal/external), war, fl ooding, fi re and traffi c accidents. X Complaints 1. Any complaints regarding defects in goods and/or complaints regarding invoices shall be reported to Euro Mail in writing and accompanied by a proper specifi cation within a maximum of ten (10) days from the delivery/dispatch of the goods or the date of the invoice. 2. Defects that could not reasonably have been identifi ed within the above-mentioned period shall be reported to Euro Mail as soon as possible after the Client discovers the defect or could reasonably have discovered it, but no later than twenty (20) days from the delivery/dispatch of the goods. 3. After the lapse of the period referred to in subsection 1 or subsection 2 above, respectively, Euro Mail shall be deemed to have complied correctly with its obligations and it shall be assumed that the Client accepts the invoices as being correct. 4. The submission of a complaint shall at no time entitle the Client to suspend payment. 5. The Client shall in no case be entitled to consider acceptance of returns by Euro Mail as constituting recognition of defects in the goods provided or as recognition of liability. 6. The Client shall cooperate fully, to the extent required by Euro Mail, with all investigatory measures regarding the complaint, including by immediately allowing Euro Mail the opportunity, if necessary, to rectify the defects. 7. If Euro Mail considers the complaint to be well founded, Euro Mail, at its own discretion, shall be entitled: - to amend the invoices; - to replace or repair the goods/services delivered; - to take back the goods/services delivered and to unilaterally cancel the agreement, reimbursing the invoice amount paid by the Client, without Euro Mail being required to pay any compensation. 8. Goods that are returned wrongly shall remain at the disposal and risk of the Client. Any charges for transport or storage shall also be at the expense of the Client. XI Liability 1. Should Euro Mail fail to comply with its obligations under a certain agreement, should Euro Mail perpetrate a wrongful act [onrechtmatige daad], or should Euro Mail become liable due to do some other circumstance, Euro Mail shall accept liability only to a restricted extent. Such liability shall in no case exceed the invoice amount for the products/services supplied (exclusive distribution and value-added tax) on the basis of the “MAIL” or “IT” service. 2. In case and to the extent that Euro Mail carries out on request of Client the transport of manufactured/processed goods from the premises of Euro Mail to the so called “businessbalie” of Royal TNT Post B.V. and/or any other distributor as indicated by Client, the “Algemene Vervoerscondities” as fi led with the of the district court in Amsterdam and Rotterdam will apply on said transport. The “Algemene Vervoerscondities” are free of charge available by request . 3. Liability for the fi nancial consequences of death, physical injury, or damage to tangible goods belonging to Client or a third party shall, furthermore, be restricted to a combined amount of EUR 150,000 for each event causing damage, but solely if the damage concerned is the fault of Euro Mail, its employees, or auxiliaries it has engaged. 4. Euro Mail shall at no time be subject to any further liability than to replace or repair faulty goods and/or to carry out or repeat the work contracted for, solely if the shortcoming concerned is not due to the fault of Client or due to a cause that is at the risk of Client, and only if Euro Mail is notifi ed in writing of the shortcoming within ten (10) days of the performance, invoices, or delivery concerned, together with a full specifi cation of the facts to which the shortcoming relates. If the work carried out by Euro Mail does not fall into the service category of “MAIL” or “IT”, or if materials are provided for the services for Client by a third party or by Client, said work or delivery shall be at the expense and risk of Client. 5. Euro Mail shall not be liable for damage caused by a delivery deadline being exceeded, interruptions in the production process or in the work of administrative organisations and databases or in the distribution of goods, nor for damage in the form of damage to or loss of data media or databases, nor damage due to the infringement of rights of intellectual property. 6. The restrictions and exclusions of liability provided for in this section shall also apply to GENERAL TERMS AND CONDITIONS 2008 EURO MAIL B.V. Page 1 of 2 alg.voorw.2008.indd 1 13-12-2007 12:09:36 employees of Euro Mail and to all other auxiliaries Euro Mail may engage. 7. Client shall not be entitled to assert any right pursuant to any guarantee if it fails to comply with its own obligations vis-à-vis Euro Mail. 8. Without prejudice to the provisions of the present article, if Euro Mail acquires goods or services from third parties on behalf of Client with a view to passing them on, Euro Mail shall not be subject to any further obligation in respect of shortcomings in the performance concerned, other than the obligation to transfer to Client any claims Euro Mail has vis-à-vis the suppliers of the goods concerned. XII Terms of Payment 1. Client shall be invoiced separately for each payment it owes. Such invoice shall be paid within fi fteen (15) days of its date, and, unless agreed otherwise, without deduction of any discount or setting off of debts. Deposits and instalment payments shall be effectuated immediately. 2. Should Euro Mail consider it necessary, Euro Mail shall at all times be entitled to deliver on a cash-on-delivery or consignment note basis. 3. Euro Mail shall be entitled to suspend deliveries or work until deposits and/or instalment payments have been effectuated or, in general, if Client has failed to comply with any payment obligation vis-à-vis Euro Mail, without thereby being obliged to pay any compensation. 4. If full payment has not been effectuated by the applicable due date/dates, Client shall automatically be deemed to be in breach of contract and Euro Mail shall be entitled to charge interest at a rate of 1% per month or part of a month on the outstanding amount, calculated from the day on which payment should have been effectuated, until the day payment is in fact effectuated, without any warning or notice of default being necessary. 5. If Client is in default, Euro Mail shall also be entitled to increase the amount owed by the cost of collection or recovery or judicial costs, including the cost of legal assistance. Any extrajudicial costs in this regard shall be set at at least 15% (exclusive of value-added tax) of the amount of our claim, up to a maximum of EUR 150. 6. Payments effectuated by the Client shall fi rst be applied against any interest or costs due and then against the invoices that are outstanding the longest, even if the Client stipulates that the payment concerned relates to a more recent invoice. XIII Confi dentiality 1. Euro Mail shall be under an obligation to observe confi dentiality in respect of software, data, and other information provided by Client to the extent of all means reasonably available to us. XIV Files 1. The applicable retention period for both source fi les and fi les created at the behest of Client shall be fourteen (14) days after the posting date, unless different arrangements have been made with Client in writing. 2. At the request of Client and in return for payment of Euro Mail’s normal charge, Euro Mail shall as far as possible ensure the safekeeping of Client’s data and fi les. 3. All software and documents Euro Mail delivers (hereinafter referred to as “data”) shall be scanned by Euro Mail for the presence of viruses etc. This shall not release Client from the obligation to scan the data itself before making use of it and/or supplying it to a third party. Notwithstanding the scans Euro Mail performs, Euro Mail is unable to guarantee that the data that Euro Mail delivers is free of viruses. 4. Euro Mail excludes all liability in respect of damage incurred by Client or third parties unless there is a deliberate act or omission or gross negligence on Euro Mail’s part. XV Processing and protection of personal data 1. If the Client provides personal data to Euro Mail, Euro Mail will perform only the tasks it is instructed to perform with regard to the personal data. Euro Mail is not authorised to perform other work or actions relating to the personal data. 2. Euro Mail shall take adequate technical and organisational measures to protect personal data against loss or any form of unauthorised processing. These measures shall guarantee an adequate level of security, taking account of the state of the art and the cost of implementation, and given the nature of the data to be protected and the risks inherent in processing. 3. Euro Mail shall maintain confi dentiality in respect of the personal data it is instructed to process. Euro Mail shall impose the same obligation of confi dentiality on its staff and on third parties who work for Euro Mail. 4. Euro Mail shall process the personal data in accordance with the Personal Data Protection Act [Wet Bescherming Persoonsgegevens]. XVI Proviso in Respect of Subcontracting 1. Euro Mail explicitly reserves the right to have work assigned to Euro Mail by Client carried out elsewhere and by a third party. Should Euro Mail do so, Euro Mail shall require its subcontractor to comply with the content and purport of the agreement with Client. XVII Applicable Law and Competent Court 1. All Euro Mail offers and undertakings, and the performance thereof, shall be governed by Dutch law. In the unlikely event of a dispute arising between Euro Mail and Client, such dispute shall be submitted for a ruling solely to the competent court in the court district of The Hague, the Netherlands unless Euro Mail prefers to take action according to the normal rules of competence. B. PROVISIONS APPLYING TO SERVICES CLASSIFIED AS “IT” 1. This part of these General Terms and Conditions deals with agreements and undertakings regarding services and the delivery of products by Euro Mail in the fi eld of data handling, (integration of fi xed or variable data/text/images, conversion of data lower case/capital letters, generating the salutation of a letter, validation, national and international removal of duplicates, data entry), laser printing and database management (development and management of databases of contacts, voice response services, address enrichment, statistics). 2. Euro Mail will make copies of software provided by Client and store them in a secure location (or have them so stored). At the request of Client and in return for payment of Euro Mail’s normal charge, Euro Mail shall also provide a clear, written specifi cation of the software that is made available. 3. In order to determine whether the computer software that Euro Mail provides complies with what has been agreed on, Client shall provide appropriate test sets in good time. The results generated on the basis of these test sets and the program in question shall be deemed to have been accepted unless Client notifi es Euro Mail, clearly and in detail, of any shortcomings that have been identifi ed within fourteen (14) days of receiving the results. 4. Where shortcomings that Euro Mail rectifi es are concerned, the provisions regarding acceptance in subsection 3 above shall be applied once more. Insofar as performance of the acceptance tests required by Client involve costs that are greater than those that are usual for the actual test, Euro Mail shall be entitled to invoice for them separately. 5. Without prejudice to the provisions in the “General” part of these terms and conditions, Euro Mail shall be required to commence rectifi cation of an error reported to us in the software provided within one (1) working day of receiving said notifi cation and also to give precedence to carrying out said rectifi cation. 6. Should the computer capacity Euro Mail provides not be usable, Euro Mail shall provide equivalent replacement capacity within a reasonable period. Client shall, however, provide the data and fi les that are required or useful for processing and shall also make available the required or useful software in the event Euro Mail does not have it at its disposal. 7. Client shall have a non-exclusive and non-transferable licence to use the software that Euro Mail makes available in accordance with the objectives for which said software is provided. Said licence shall include the right to make and keep several copies with a view to security and historical reporting. The copyright in respect of software that Euro Mail creates or otherwise make available to the customer shall remain vested in Euro Mail. Client shall have access, during Euro Mail’s normal working hours, to the information carriers on which data are stored that have been or will be processed on behalf of Client. 8. Without prejudice to the provisions in the “General” part of these General Terms and Conditions, Euro Mail shall not be liable in respect of any damage caused by errors in the software, applications, and peripherals that Euro Mail uses, insofar as said errors can be traced to errors (including construction errors) in said equipment, software, and applications; in such case, it shall at all times be the manufacturer of said equipment etc. that is liable. 9. Client indemnifi es Euro Mail in respect of all consequences of the use of the data or goods with which Client provides Euro Mail. With respect to any damage incurred or later incurred as a result of this, Client shall approach the supplier, in which case Euro Mail undertakes to provide Client with all necessary information that Euro Mail has at its disposal. C. PROVISIONS APPLYING TO SERVICES CLASSIFIED AS “MAIL” 1. This part of these General Terms and Conditions shall apply to agreements and undertakings regarding Euro Mail’s provision of services and products in the fi eld of pre-postal processing (enveloping from A6 to A4, sealing and applying address wrappers, inkjet printing, laser printing, folding, manual processing, fulfi lment (response service, cash and article refund activities), additional storage with stock management systems, project management). 2. Euro Mail shall also not be liable in respect of any damage caused by errors in the software, applications, or peripherals that Euro Mail uses, insofar as said errors can be traced to errors (including construction errors) in said equipment, software, and applications; in such case, it shall at all times be the manufacturer of said equipment etc. that is liable. 3 Client indemnifi es Euro Mail in respect of all consequences of the use of the data or goods with which Client provides Euro Mail. With respect to any damage incurred or later incurred as a result of this, Client shall approach the supplier, in which case Euro Mail undertakes to provide Client with all necessary information that Euro Mail have at its disposal. D. PROVISIONS APPLYING TO SERVICES CLASSIFIED AS “DISTRI” 1. This part of these General Terms and Conditions shall apply to agreements and undertakings regarding the provision of services and products in the fi eld of national and/or international mail services (conveyance of postal items, including via TNT Post). 2. Euro Mail accepts no liability for delays arising from the distribution of goods, nor does Euro Mail accept any liability for any damage suffered and/or later suffered by Client as a result of circumstances involved in or relating to the distribution of postal items and goods that are dispatched, unless there is a deliberate act or omission or gross negligence on part of Euro Mail. Page 2 of 2 alg.voorw.2008.indd 2 13-12-2007 12:09:37