PTI General Terms and Conditions
I Definitions and Applicability
In these general terms and conditions (“Terms”), the following terms have the following meanings:
“Services” : the services that PTI aims to provide, provides, or has provided to the client under an Agreement;
“Mailing Services” : the services to be provided by PTI as described in the agreement, including but not limited to preparing for dispatch and delivering to clients of the client (meter reading) cards/forms/letters/email/SMS/phone messages, as well as (assisting in) designing and producing (meter reading) cards/forms/letters/email.
“Client”: the natural person or legal entity entering into an Agreement with PTI;
“Agreement” : a written agreement, not being an employment agreement, between PTI and the Client related to the provision of Services;
“PTI” : PTI Holding B.V. or Pincode Telenet B.V., both registered in Woerden (3447 GG) at Korenmolenlaan 1c, with whom the Client has entered into an Agreement.
“Response Services” : the services provided by PTI for collecting data/information such as marketing data/meter readings from clients of the Client, as further described in the agreement, including scanning and processing of forms, (meter reading) cards, providing and maintaining a central database, voice response application including phone numbers, developing, providing, and maintaining internet applications on the Client’s or PTI’s website, developing and maintaining a handheld application for physical readings, surveys, meter replacement, collection, etc. (including links to the central database), as well as providing the Client with electronic files containing the obtained data or meter readings.
These terms and conditions apply to all offers from PTI and form an integral part of every Agreement explicitly referring to these terms and conditions.
Deviations from or additions to these terms and conditions or an Agreement are only valid if agreed upon in writing by the parties.
In case of discrepancies between an Agreement and these terms and conditions, the provisions of the Agreement prevail.
II Offers and Conclusion of an Agreement
PTI’s offers are valid for a period of ninety (90) days.
An Agreement comes into effect if PTI’s offer is accepted in writing by the Client through a legally signed document, written confirmation by letter or email, or actual use of the offered services.
III PTI Services (Description)
- PTI provides services such as sending mailings and handling Response services through various methods for organizations such as water and energy companies, financial institutions, publishers, and media companies.
- PTI provides services, including collecting meter readings from customers of water and energy companies, as requested by these companies through various methods.
- PTI provides services, including collecting marketing data from respondents/customers of companies and organizations, as requested by these companies and organizations through various methods.
- PTI provides services, including providing an internet application for planning and coordinating field services in general, services for meter replacement, and meter readings for customers of water and energy and other companies, as requested by these companies.
Article 1 – Mailing Services
1.1 PTI will perform Mailing Services as described in the agreement.
1.2 PTI will perform Mailing Services in a professional and careful manner.
1.3 The Client must send a dispatch order for the execution of Mailing Services to PTI by letter, fax, or email. A dispatch order will include the information as prescribed by PTI.
1.4 PTI will confirm a dispatch order in writing to the Client within seven (7) working days. A dispatch order is only final when PTI has confirmed it in writing to the Client.
1.5 The Client must provide all necessary information for the correct execution of the Mailing Services to PTI at least four (4) working days before each dispatch order, so that PTI can schedule or reserve the necessary production capacity.
1.6 If the Client does not provide the necessary information, materials, or other items for execution on time, PTI is entitled to adjust agreed-upon deadlines for the execution of Mailing Services at its own discretion. Any additional costs incurred by PTI due to the Client’s untimely submission are borne by the Client.
1.7 The Client shall deliver goods free of charge to the agreed place and at the agreed time for processing. If PTI finds that delivered goods are damaged, PTI will inform the Client of this as soon as possible by letter, fax, or email.
1.8 Shipment of goods is at the Client’s risk. Costs for returning or destroying damaged goods, packaging, and other residual materials are borne by the Client.
Article 2 – Response Services
2.1 PTI will perform Response Services as described in the agreement.
2.2 PTI will perform Response Services in a professional and careful manner.
2.3 The Client shall provide PTI with all necessary information, materials, and other necessary items for the execution of Response Services in a timely manner before the start of the execution of Response Services.
2.4 PTI may issue binding instructions to the Client, including but not limited to:
a) the layout or format of the materials to be delivered and/or other items; and
b) the manner in which materials, information, and/or other items are delivered.
2.5 If the Client does not provide PTI with the information, materials, or other items required for the execution in a timely manner, PTI is entitled to adjust agreed-upon deadlines for performing the Response services at its own discretion. Any additional costs incurred by PTI due to the Client’s untimely delivery are the responsibility of the Client.
2.6 PTI is only obligated to perform (parts of) the Response services to the extent that the Client complies with binding instructions from PTI.
2.7 PTI may deactivate or restrict the use of (parts of) the Response services if it is deemed necessary for maintenance work (between 22:00 and 08:00 CET – Central European Time). Corrective and urgently required maintenance is performed immediately at PTI’s discretion.
2.8 PTI may terminate, suspend, interrupt, or limit (parts of) the Response services with immediate effect on its own initiative:
a) to safeguard the safety or integrity of (parts of) the Response services; or
b) if (parts of) the Response services are used by the Client or third parties for purposes other than stipulated in this Agreement.
2.9 PTI is not liable for any damages resulting from the termination, suspension, interruption, or limitation of the Response services.
Article 3 – Prices and Payment
3.1 Prices, rates, and fees for the Services are PTI’s standard rates as stated in the PTI price lists or included in the agreement.
3.2 All prices and rates are exclusive of value-added tax (VAT) and other government-imposed levies. Unless otherwise specified in the agreement, prices and rates exclude packaging costs and travel and accommodation costs.
3.3 PTI’s prices may be increased once a year by up to the percentage of the monthly price index according to the Consumer Price Index (CPI) for all households, 2006=100 published by CBS (Statistics Netherlands). Price changes, whether due to imposed surcharges, for products or services obtained by PTI from third parties, specifically telecom (service) companies, distribution companies, and temporary employment agencies, will be passed on to the Client by PTI in full.
3.4 Payment and invoicing will take place in accordance with the agreement. In the absence of or ambiguity regarding a payment term, a payment term of fifteen (15) days will apply.
3.5 If the Client does not pay the amounts due within the agreed-upon term, the Client will be in default without any formal notice, and the Client will be liable for the legal interest for commercial transactions (Article 6:119a Dutch Civil Code) on the outstanding amount. If, after a formal notice, the Client remains negligent in fulfilling the claim, the claim may be transferred for collection, in which case the Client, in addition to the then-due total amount, will also be obligated to fully reimburse extrajudicial and judicial costs, including all costs incurred by external experts, in addition to the court-approved costs, related to the collection of this claim or exercising legal rights in any other way, with the amount determined at a minimum of 15% of the total amount.
3.6 The Client waives any right to set-off any claim. Therefore, the Client may never exempt itself from a payment obligation to PTI by invoking a right of set-off.
3.7 At the start of the Agreement, the Client will pay PTI an amount specified in the agreement within five (5) working days and then monthly for costs specified in the agreement, including costs related to temporary employment agencies and postage payments to distributors that PTI will incur in the execution of the Agreement. PTI is not required to pay interest on the prepaid amounts to the Client.
Article 4 – Additional Work
4.1 If the Services to be performed by PTI under the Agreement are increased or expanded due to additional wishes of the Client, this constitutes additional work that will be compensated according to PTI’s standard rates.
4.2 If PTI believes that there will be additional work, it will notify the Client as soon as possible. Prior to the execution of additional work, written or email consent from the Client is required.
4.3 The Client accepts that the agreed or expected completion time of the Services, and the mutual responsibilities of the Client and PTI, may be influenced by work or performances as referred to in Article 4.1.
Article 5 – Communication and Reporting
5.1 Both Parties will appoint a contact person and an alternate contact person who will maintain contact regarding the (method of) execution of the Agreement.
5.2 PTI will periodically inform the Client in writing of the (amount of) variable costs to be charged over that period. In addition, PTI will promptly inform the Client of circumstances that impede or delay the execution of the Services by PTI.
Article 6 – Liability
6.1 PTI is never liable for any indirect damage to the Client or third parties, including consequential damage, loss of turnover and profit, and immaterial damage, related to or arising from the Agreement.
6.2 PTI’s liability is limited to direct damage that can be attributed to it and that is related to the execution of the Agreement. Direct damage as referred to in this article solely includes:
a ) reasonable costs incurred to make the delivered performances conform to the Agreement, including reasonable costs incurred to restore lost or damaged data;
b) reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to a limitation of direct damage within the meaning of this article;
c ) reasonable costs incurred to determine damage, insofar as the determination relates to direct damage within the meaning of this article.
6.3 Notwithstanding what is stipulated elsewhere in the Agreement, PTI’s liability to the Client, for whatever reason, per event (where a connected series of events is considered one event), is limited to (i) the fees actually paid by the Client to PTI in the three months prior to this event, excluding costs charged by distributors for postage and/or network costs of telecom operators and/or temporary employment agency costs and excluding VAT, or (ii) the amount actually paid out by PTI’s insurance as compensation for stored materials and assets of the Client, such as envelopes and meter reading cards. The agreed coverage with regard to the mentioned under (ii) for materials of which PTI is the holder on behalf of the Client is a maximum of 1000 euros per stored pallet and includes loss due to fire, water damage, storm damage, and theft.
6.4 Articles 6.1, 6.2, and 6.3 do not apply if and insofar as the damage in question is caused by intent or gross negligence of PTI or its highest management.
6.5 If a shortcoming on the part of PTI can be attributed to or is at the risk of a third party engaged by PTI, without PTI being able to appeal to force majeure, PTI’s liability is limited to the amount that PTI receives or will receive from this third party for this shortcoming.
6.6 The Client indemnifies PTI against all claims from third parties, regardless of the grounds, concerning compensation for damages, costs, or accrued interest, related to or arising from the Agreement.
6.7 A prerequisite for any entitlement to compensation is that the Client notifies PTI of the damage in writing within 10 days of its occurrence.
Article 7 – Force Majeure
7.1 Neither Party is obligated to fulfill any obligation if prevented from doing so due to force majeure. Force majeure also includes a non-attributable failure of third parties or suppliers engaged, as well as any situation over which the respective Party effectively has no (decisive) control.
7.2 If the force majeure situation lasts for more than forty-five (45) days, each of the Parties has the right to terminate the Agreement in writing. Whatever has already been performed as a result of the Agreement will be settled in accordance with the provisions of the Agreement, without any further obligation for payment of costs or any form of (damage) compensation between the Parties.
Article 8 – Confidentiality and Privacy
8.1 The intellectual property rights to information, know-how, materials, software, internet applications, and other results of the Services developed and/or applied by PTI under this Agreement belong to PTI or its suppliers.
8.2 Intellectual property rights to information, materials, etc. provided by the Client under this Agreement belong to the Client.
8.3 For the duration of the Agreement and as necessary for its execution, Parties grant each other a non-exclusive, non-transferable license to use the information, know-how, materials, software, internet applications, etc., mentioned in Articles 8.1 and 8.2.
8.4 PTI hereby grants the Client the exclusive (except for PTI), non-transferable right to request and reuse (parts of) the database built by PTI in the context of the Response services for its own use.
8.5 Parties mutually indemnify each other against claims from third parties regarding any infringement of intellectual (property) rights and similar rights of those third parties. Parties undertake, at their own expense, all measures that may contribute to preventing a disruption of the Services and limiting the additional costs and/or damage suffered by the other Party. Notwithstanding the above, the indemnifying Party is entitled, if third parties hold this Party liable for a breach of intellectual (property) rights and/or similar rights, to terminate this Agreement in writing, out of court, in whole or in part, with or without retroactive effect, without prejudice to its other rights. The indemnifying Party will not exercise the right to terminate this Agreement on the basis of this article without prior consultation with the other Party. Termination under this article does not provide grounds for damages.
8.6 To the extent that (address) files provided by the Client contain personal data within the meaning of the Dutch Data Protection Act (‘Wbp’), the Client is considered the ‘controller,’ and PTI is the ‘processor’ within the meaning of the Wbp. As a processor, PTI has no independent control over the personal data it processes. The Client remains responsible for the processing of personal data from the relevant (address) files in accordance with the Wbp. PTI will take appropriate technical and organizational measures to secure (personal) data against loss or any form of unlawful processing. The Client may, after consultation with PTI, at its own expense, examine the technical and organizational measures taken.
8.7 The Client ensures that all legal regulations concerning the processing of personal data, including the regulations given by or under the Wbp, are strictly observed and that all required notifications are made, and all necessary consents for the processing of personal data are obtained. The Client will promptly provide PTI with all requested information in writing.
8.8 PTI will process personal data in a proper and careful manner and in accordance with the Wbp. PTI undertakes not to disclose to third parties personal data that becomes known to PTI during the performance of the Agreement or otherwise during the provision of the Services unless PTI is obliged to do so under statutory or other regulations.
8.9 Unless expressly agreed otherwise with the Client, PTI will use the data from the relevant (address) files exclusively for the performance of the Agreement.
8.10 The Client indemnifies PTI against all claims from third parties that may be filed against PTI due to a breach of the Wbp and/or other legislation regarding the processing of personal data, as well as legislation on legal retention periods.
Article 9 – Duration and Termination
9.1 If and to the extent that confidential information of one Party comes to the knowledge of the other Party in the execution of the Agreement, the other Party shall use this information only for the purpose of performing the Agreement and restrict access to the information to persons who need to be aware of it for that purpose. Parties ensure that these persons will be obligated to confidentiality through an employment agreement and/or a confidentiality agreement.
9.2 Confidential information does not include information that was already public at the time it came to the knowledge of the receiving Party, became public afterwards without the involvement of the receiving Party, or that the receiving Party also received from a third party without being subject to a confidentiality obligation, and this third party was also not obligated to confidentiality.
Article 10 – Applicable Law and Disputes
10.1 The Agreement comes into effect upon signing by PTI and the Client and is entered into for an initial period of two (2) years from the date of signing or from the date of the commencement of the provision of the Services by PTI to the Client, whichever is later. Subsequently, it will be automatically renewed for successive periods of two years each. Termination by either party can be done with a notice period of six months before the termination of the agreement. Termination must be made by registered mail.
10.2 In addition to what is determined elsewhere in the Agreement:
a) Each Party is entitled to terminate the Agreement out of court by registered mail if the other Party, even after written notice and a reasonable period, fails to fulfill substantial obligations under the Agreement.
b) Each Party is entitled, without any notice or default being required, to terminate the Agreement out of court by registered mail if the other Party applies for provisional suspension of payments or if provisional suspension of payments is granted; the other Party applies for bankruptcy or is declared bankrupt; the business of the other Party is liquidated (other than for the purpose of merging or splitting businesses); or the other Party discontinues its current business.
10.3 Obligations that, by their nature, are intended to continue after the termination of the Agreement shall remain in force after the termination of the Agreement. These obligations include, among others, confidentiality, liability, intellectual property, choice of law, and dispute resolution.
Article 11 – Amendments to Terms and Conditions
11.1 Parties are not entitled to transfer any right and/or obligation from the Agreement to a third party without prior written consent from the other Party. Parties shall not unreasonably withhold their consent and may attach reasonable conditions to the granting of such consent. The Client ensures that the obligations from the Agreement, in the event of a possible change in the organizational structure of the Client or the group to which the Client belongs, resulting in the transfer of the activities related to the Mailing and/or Response services to another entity, are transferred to that other entity only with the prior consent of PTI.
11.2 PTI is entitled to use third parties, such as distributors for mail, telecom providers, temporary employment agencies, and other third parties in performing the Services. To the extent PTI uses such third parties, the (general) terms and conditions of the respective third party shall apply in the same manner as in the relationship between PTI and that third party.
Article 12 – Final Provisions
12.1 Dutch law applies to this Agreement. After the parties have attempted to amicably resolve a dispute and after consultation at the executive level regarding the specific dispute, disputes will be submitted to the competent court in Utrecht.
Article 13 – Other Provisions Regarding the Agreement
13.1 Oral communications, commitments, or agreements have no legal force unless confirmed in writing or electronically. The Agreement can only be amended by means of a written document that, after signing, will be added as an Appendix to this Agreement.
13.2 The offering and use of 0800/090X numbers, within the framework of the Response services, are subject to the Code Information Services of the Stichting Onafhankelijke Commissie Informatienummers OCI (see http://www.stichtingoci.nl/documenten/Code_OCI.pdf). In the case of SMS services, parties will act in accordance with socially desired and/or accepted norms of decency.
13.3 Failure by one of the Parties to demand compliance with any provision within a period specified in the Agreement does not affect the right to demand compliance with that provision later, unless the relevant Party has expressly and in writing agreed to the non-compliance.
13.4 If one or more provisions of the Agreement conflict with any applicable legal provision, the respective provision shall be void, and the Parties shall consult on the formulation of a new, comparable, and legally permissible provision. The foregoing does not affect the applicability of the remaining provisions of the Agreement.
PTI General Terms and Conditions (copyright: Woerden, October 2008)