PTI General Terms and Conditions

 

I Description of terms and applicability

In these General Terms and Conditions (“Delivery Conditions”) the following terms have the stated meanings

“Services” : the services PTI envisages providing, provides or has provided to a customer based on an Agreement.

“Mailing Services” : the services provided by PTI, as further described in the Agreement, consisting of, among other things, the preparation and despatch and delivery to customers of the client of (meter reading) cards/forms/letters/emails/text messages/phone messages, as well as offering advise and guidance regarding the design and production of (meter reading) cards/ forms/letters/emails.

“Client”: the natural person or legal entity that enters into an agreement with PTI.

“Agreement” : a written agreement, not being a contract of employment, between PTI and the Client relating to the delivery of services.

“PTI” : PTI Holding B.V. or Pincode Telenet B.V., both with registered offices in Woerden (3447 GG) on Korenmolenlaan 1c, with whom the Client has entered into an Agreement.

“Response Services”: the services to be provided by PTI for the collection of details/data, such as marketing details/meter readings from customers of the Client as further described in the Agreement, consisting of the scanning and processing of forms, (meter readings) cards, the making available and maintaining of a central database, voice response application including telephone numbers, the development of, making available of and maintaining of internet applications on the website of the Client or PTI, the development and maintenance of a hand terminal application to take physical recordings, research, meter exchanges and collection of money, etc. (including the links to a central database) as well as providing the Client with electronic files containing the data obtained, including the meter readings.

These Conditions of Delivery apply to all offers made by PTI and form an integral part of any Agreement that explicitly refers to these Conditions of Delivery.

Deviations from or amendments to these Conditions of Delivery or an Agreement only apply if these have been agreed in writing.

Should any conditions in an Agreement deviate from these Delivery Conditions the conditions of the Agreement take precedence.

 

II Offers and arriving at an Agreement

Offers made by PTI are valid for a period of ninety (90) days.

An Agreement is reached should an offer by PTI have been accepted in writing by the Client by means of a legally signed document, written confirmation by letter or email or actual use being made of the service offered.

 

III Services of PTI (description)

- PTI provides services such as dispatching mailings and providing response services using various methods, for organisations such as water and energy companies, financial institutions, publishers and media companies.

- PTI provides services at the request of water and energy companies to collect meter readings of the customers of the water and energy companies via a variety of different methods.

- PTI provides services at the request of water and energy companies to collect marketing data from respondents/customers of these companies via a variety of different methods.

- PTI provides services at the request of water and energy companies to make available internet applications for planning and managing work carried out on-site in general, services for meter exchanges and meter readings at customers of the water and energy companies and other companies.

 

Article 1 - Mailing services

1.1 PTI will carry out the mailing services as described in the agreement.

1.2 PTI will carry out the response services in a professional and careful manner.

1.3 In order for the mailing services to be carried out, the Client must send PTI an instruction to do so by letter, fax or email. An order to proceed will contain the information as prescribed by PTI.

1.4 PTI will confirm in writing receipt of the Client's order to proceed within a period of seven (7) working days. An order to proceed only becomes definitive when PTI has confirmed this in writing with the Client.

1.5 The Client should provide PTI with all the required information at least four (4) working days before each order to proceed to ensure the proper implementation of the mailing services in question, in order to allow PTI to plan and book all the necessary production capacity.

1.6 Should the Client not provide PTI with the required information, materials or other items in time, PTI is entitled to alter the agreed time schedules of the mailing as they see fit. Any extra costs incurred by PTI due to the late delivery by the Client will be borne by the Client.

1.7 The Client will have the goods delivered postage prepaid at the time and place agreed upon by the parties for processing. Should PTI find that the delivered goods are damaged, PTI will inform the Client of this as soon as possible by letter, fax or email.

1.8 The risk of transportation of the goods is borne by the Client. Cost incurred for retuning damaged/destroyed goods, packaging and other material will be borne by the Client.

 

Article 2 - Response services

2.1 PTI will carry out the response services as described in the agreement.

2.2 PTI will carry out the response services in a professional and careful manner.

2.3 The Client will furnish PTI with all the necessary information, materials and other necessary items for carrying out the response services in a timely manner, prior to the commencement of the implementation of the response services.

2.4 PTI can provide the Client with binding instructions with regard to the following aspects:

a) the lay-out or format of the materials and/or other items to be provided; and

b) the manner in which the materials, information and/or other items are delivered.

2.5 Should the Client not provide PTI with the required information, materials or other items in time, PTI is entitled to alter the agreed time schedules of the response services as they see fit. Any extra costs incurred by PTI due to the late delivery by the Client will be borne by the Client.

2.6 PTI is only obliged to carry out (parts of) the response services, in as much as the client complies with the binding instructions of PTI.

2.7 PTI can put (parts of) the response services out of service or limit their use, should this be required or deemed to be necessary for the purposes of maintenance work (between the hours of 10 pm and 8 am Central European Time). Any urgent maintenance that PTI assesses needs to be carried out, will take place immediately.

2.8 PTI can, on their own initiative, discontinue, suspend, interrupt and/or restrict (parts of) the response services with immediate effect:

a) to guarantee the safety or integrity of (parts of) the response service; or

b) should (parts of) the response services be used by the Client or third parties for purposes other than those laid down in the Agreement.

2.9 PTI is not liable for any damages that result from discontinuing, suspending, interrupting or restricting the response services.

 

GENERAL CONDITIONS

Article 3 - Prices and payment

3.1 Prices, rates and payment for services are the standard rates for PTI as stated in the price lists of PTI or as stated in the Agreement.

3.2 All prices and rates exclude value added tax (VAT) and other levies that government agencies may apply. Unless stated otherwise in the Agreement, the prices and rates exclude costs of packaging, travel and accommodation costs.

3.3 Prices that are used by PTI, can be increased once a year by the maximum percentage of the monthly price index according to the consumer price index (CPI) for all household, 2006=100 published by the CBS. Price changes, whether or not the result of surcharges applied, of products or services provided by PTI through third parties, more specifically involving telecom (service) companies, distribution companies and employment agencies, will be passed on by PTI to the Client.

3.4 Payment and invoicing will take place in accordance with the conditions laid down in the Agreement. In the case of there being no date stated or any lack of clarity about a payment date, a term of fifteen (15) days applies.

3.5 Should the Client not make payment of the outstanding amounts within the stated period, the Client will be deemed to be in default without any formal notice of default having to be served and will be liable to pay the legally applicable interest for commercial agreements on the outstanding amount (Article 6:119a of the Civil Code). Should the Client continue to be in default and not make payment, the collection of payment may be handed over to a third party, in which case the Client will be liable for the full outstanding amount and will also be liable to make full reimbursement of all extra-judicial and legal costs, including all costs incurred for external experts and all legally determined costs relating to the collection of the demand or required legal action, the minimum amount being set at 15% of the total amount

3.6 The Client waives any rights to offset any demands. The Client is at no point entitled to retract from their obligations to make payment to PTI by offsetting the amount due.

3.7 At the commencement of the Agreement, the Client will make payment to PTI within five working days (5) and thereafter monthly, of an amount stated in the agreement, to meet the costs as specified in the Agreement, these to include salary costs for employment agencies and postage costs to the distributors that PTI will make within the framework of the implementation of the Agreement. PTI is not liable to pay any interest charges to the Client on the pre-payments in question.

 

Article 4 - Additional work

4.1 Should additional requirements of the client result in the services that PTI carry out to implement the Agreement being appended to or extended, this will result in extra work having to be carried out and thus this work will be reimbursed at the usual PTI rates.

4.2 If PTI is of the opinion that additional work is required, they will inform the Client of this as soon as is possible. Prior to additional work being carried out, permission from the Client is required in writing or by email.

4.3 The client accepts that due to the work or activities stated in Article 4.1, the agreed or expected schedule for completion of the services and the mutual responsibilities of the Client and PTI may be effected.

 

Article 5 - Communication and reporting

5.1 Both Parties will appoint a contact person and a substitute contact person, who will coordinate the communication (of the means) of carrying out the Agreement.

5.2 PTI will inform the Client periodically of the (state) of variable costs that will be applied for that period. In addition PTI will inform the Client as soon as possible about circumstances that may compromise or delay the execution of the services provided.

 

Article 6 - Liability

6.1 PTI is not liable for any indirect damages of the Client or third parties, this includes consequential damages, lost turnover and profit and immaterial damages, that are related to or are a consequence of the Agreement.

6.2 The liability of PTI is limited to direct damages that can be attributed to PTI and relates to the implementation of the Agreement. In this article, the term direct damages, is exclusively taken to mean the following:

a ) reasonable costs incurred in the performance of the services of the Agreement, this is taken to include the reasonable costs incurred to recover lost or damaged data;

b) reasonable costs incurred to prevent or limit damages, in as much as the Client has proven that these costs have resulted in a limitation of direct damages within the meaning of this article;

c ) reasonable costs incurred in determining damages, in as much as the determining of these damages relates to direct damages within the meaning of this article

6.3 Irrespective of what is stipulated elsewhere in this agreement, the liability of PTI with regard to the Client, for whatever cause, for each event (whereby a linked set of events are regarded as one event) is limited to (i) the amount of the reimbursements in the preceding three months actually paid by the Client to PTI, with the exception of the costs paid to the distributors for postage and packing and/or concerning network costs of telecom operators and/or salary costs for employment agencies and excluding VAT, or (ii) the actual amount of insurance paid out for reimbursement for stored materials and property of the Client, such as envelopes and meter reading cards. The agreed cover relating to that stipulated in sub-section (ii) for materials which PTI holds on behalf of the client, amounts to a maximum of 1000 euros for each stored pallet and covers loss due to fire, water damage and theft.

6.4 Articles 6.1, 6.2 and 6.3 do not apply should and in as much as the damage in question is caused by a deliberate act or recklessness on the part of PTI or the upper echelons of their management team.

6.5 Should a shortcoming be attributable to PTI or the risk is borne by a third party engaged by PTI, without PTI being reproached in any way, then the liability of PTI is limited in the same way and in the same amount as PTI has agreed with the third party in question.

6.6 The Client indemnifies PTI against all claims by third parties, of whatever nature, in the matter of recompense for damages, costs or reimbursement of interest, connected with or resulting from the Agreement.

6.7 A pre-condition for any right to reimbursement of damages is that the Client reports damages in writing to PTI within ten days of such damages occurring.

 

Article 7 - Force Majeure

7.1 Neither party can be held to any obligations should they be prevented from doing so as a result of force majeure. The term force majeure is taken to mean any shortcoming that cannot be attributed to third parties or suppliers, as well as any situation over which the party in question can exercise no actual (decisive) control.

 

7.2 When a situation of force majeure continues for more than forty five (45) days, both Parties are entitled to dissolve the Agreement in writing. Those services and goods provided as a result of the Agreement, will be settled in accordance with the conditions laid down in the Agreement, without either of the parties being held liable to pay costs or any form or reimbursement for damages.

 

Article 8 - Intellectual property rights and privacy

8.1 The intellectual property rights, information, know how, materials, software, internet application(s) and other results of the services provided, developed or applied by PTI within the framework of this Agreement remain the property of PTI or their suppliers.

8.2 Intellectual property rights for the information, materials, etc. of the Client within the framework of this Agreement remain the property of the Client.

8.3 For the duration of the Agreement and in as much as it is required for the implementation of the Agreement, the Parties grant one another a non-exclusive, non-transferable license for the information, know how, materials, software and internet applications stated in Article 8.1 and 8.2.

8.4 PTI hereby grants the Client exclusive (with the exception of PTI) non-transferable rights to request to make use of for themselves and to re-reuse (parts of) the data bank accumulated by PTI within the framework of the response services.

8.5 The Parties mutually indemnify one another against claims by third parties in the event of any contravention of intellectual (property) rights and comparable rights of third parties. The Parties undertake to take measures and individually bear the costs for preventing the Services not being carried out and to limit any extra cost and /or damages suffered by the other Party. Notwithstanding that laid down in this section, the indemnifying party is entitled, should third parties hold them liable for contravening intellectual property rights and/or comparable rights, to dissolve this Agreement in writing, without recourse to the courts, fully or partially, either with or without retroactive effect; without prejudice to their other rights. The indemnifying party will not make use of the right to dissolve this Agreement until they have discussed the matter with the other Party. Dissolving the Agreement on the grounds of this Article does not provide grounds for compensation.

8.6 In as much as the Client has provided (address) files containing personal details within the meaning of the Dutch Data Protection Act, the client is viewed as being the "company responsible" and PTI is viewed as being the "processor" within the meaning of the Act As a processor PTI has no independent say on the personal details that are processed by them. The Client remains responsible for the processing of the personal details from the (address) files in question, in accordance with the Dutch Data Protection Act. PTI will ensure that appropriate technical and organisational measures are taken in order to protect (personal) details against loss or any form of illegal processing. The Client can, after prior consultation with PTI, investigate the technical and organisational measures taken and will bear the cost for such investigations.

8.7 The Client guarantees that all legally applicable conditions concerning the processing of personal details, including those stipulated in the Dutch Data Protection Act, will be strictly complied with and that all prescribed reports are carried out and all required authorisations have been obtained for the processing of personal details. The Client will immediately provide PTI with all requested information in writing, in this matter.

8.8 PTI will exclusively process the personal details in a proper and careful manner and in accordance with the Dutch Data Protection Act. PTI undertakes not to reveal the personal details that are made known to them in carrying out the Agreement or are made known to them when carrying out their Services to third parties unless PTI is obliged to do so by law or other legislation.

8.9 Unless expressly agreed otherwise with the Client, PTI will exclusively use the data in the (address) files in question in order to carry out the Agreement.

8.10 The Client indemnifies PTI against all claims by third parties that may be instituted against PTI due to a breach of the Dutch Data Protection Act that cannot be attributed to PTI and/or other legislation concerning the processing of personal data or legislation concerning the legally stipulated periods the details must be stored for.

 

Article 9 - Confidentiality

9.1 Should, in the implementation of the Agreement, confidential information of one Party become known by the other Party, the other Party will only use the information for carrying out the Agreement and will restrict access to the information to those persons who need to have knowledge of it for that purpose. The Parties guarantee that these persons will be obliged under a contract of employment and/or a confidentiality agreement, to respect the confidentiality of this confidential information.

9.2 Confidential information is not taken to mean information that was already in the public domain at the time it came to be known by the recipient, that subsequently became public knowledge without the intervention of the recipient, or that the recipient obtained from a third party without a confidentiality obligation having been imposed and the third party involved was not obligated under a confidentiality agreement.

 

Article 10 - Duration and termination

10.1 The Agreement comes into force after being signed by PTI and the Client and is entered into for an initial period of two (2) years, commencing as of the date of signing or else as of the date of commencement of the services by PTI for the Client, depending on which date is the later. The Agreement will then be tacitly extended every two years. The Agreement can be terminated by one of the parties, taking due account of the notice period required, this being a period of six months. Termination of the Agreement must take place by means of a recorded delivery letter

10.2 Beyond that stipulated elsewhere in the Agreement it is determined that:

a) either of the Parties are entitled to dissolve the Agreement by means of a recorded delivery letter without recourse to legal measures, should the other Party remains in default with regard to their obligations relating to the Agreement after being formally being given written notice of being in default;
b) either of the Parties are entitled, without any requirement of notice of default having been served, to dissolve the Agreement without recourse to legal action by means of a recorded deliver letter, should the other Party request temporary suspension of payment or temporary suspension of payment has been granted; the other Party requests to be declared bankrupt or is declared bankrupt; the company of the other Party is liquidated (other than for the purposes of the company being merged or demerged); or if the other Party ceases trading.

10.3 Obligations that due to their nature are intended to continue even after termination of the Agreement, remain in force after termination of the Agreement. These obligations include: confidentiality, liability, intellectual property, choice of courts and rulings on disputes.

 

Article 11 - Transfer of rights and obligations, sub-contracting and exclusivity

11.1 The Parties are not entitled to transfer rights or obligations arising from the Agreement to third parties without the prior written permission of the other Party. The Parties will not withhold their permission on unreasonable grounds and are entitled to attach reasonable conditions to permissions they grant. The Client will ensure that the obligations resulting from the Agreement in the case of any changes to the structure of the organisation of the Client or the concern that the Client is a part of, due to which the activities of the Client for which the mailing and/or response services relate are undertaken by another entity, are transferred to the other entity in question, after prior permission has been granted by PTI.

11.2 PTI is entitled, when carry out the services, to make use of third parties such as distributors for items of post, telecom providers, employment agencies and other third parties. In as much as PTI makes use of such third parties, the (general) terms and conditions for services carried out by such third parties apply to such third parties in the same way as in the relationship between PTI and these third parties.

 

Article 12 - Disputes and applicable law

12.1 Dutch law applies to this Agreement. After the Parties have tried to come to a mutually satisfactory solution and after discussions at board level about the dispute in question, the dispute will be presented to the duly authorised court in Utrecht.

 

Article 13 - Other conditions relating to the Agreement

13.1 Verbally communicated messages, promises or agreements have no standing in law, unless these have been confirmed in writing or by electronic means. The Agreement can only be amended by means of a written document that after signing is upended as to this Agreement as an appendix.

13.2 The Information Services Code laid down by the Independent Commission for Information Numbers applies for offering for use and actual use of 0800/090X numbers within the framework of the response services (refer to http://www.stichtingoci.nl/documenten/Code_OCI.pdf ). When making use of text message services, the Parties are to act in accordance with desired socially accepted standards of decency.

13.3 Should one party omit to demand compliance with any stipulation within a stated time period stipulated in the Agreement, this does not obviate the need to comply with the requirement, unless the Party in question has expressly stated in writing that it agrees with the non-compliance.

13.4 Should one or more the conditions of the Agreement be in contravention with any applicable legal prescriptions, the condition in question will be deleted and the Parties will enter in discussions to formulate a new, comparable condition that is permitted by law. The aforementioned stipulation does not effect the applicability of the remaining conditions laid down in the Agreement.

PTI General Delivery Conditions (copyright: Woerden, October 2008)