General Terms and Conditions pertaining to the provision of direct mail by optilyz GmbH
Release: February 2020
These terms and conditions (hereinafter called “T&Cs”) apply to all contracts, orders, services or other agreements (hereinafter called ‘single order’), which refer to these T&Cs and are concluded between optilyz GmbH, Neue Schoenhauser Str. 19, 10178 Berlin, Germany (hereinafter ‘OPTILYZ’) and the respective contractual party (hereinafter ‘Client’) and only if the client is acting in accordance with their commercial or freelance occupation (hence the client is an entrepreneur as defined in the sense of section 14 of the German Civil Code (BGB)) or is a legal entity or special fund under public law.
For every single order, the T&Cs of OPTILYZ apply exclusively. Divergent, conflicting or additional general terms and conditions of the client shall become contractually binding only if and insofar as OPTILYZ has explicitly agreed to their validity in writing.
Every single order constitutes an independent contract, which has no legal consequences on potential future contracts between OPTILYZ and the client.
Insofar as the provisions of the single order contradict these T&Cs, the provisions of the single order have priority.
Conclusion of contract
- OPTILYZ is only legally bound after explicit order acceptance by OPTILYZ. Mere confirmations of receipt sent by OPTILYZ on placing an order via the OPTILYZ website (https://www.optilyz.com/) (hereinafter the ‘OPTILYZ Platform’) without delay to the potential Client do not represent an acceptance of the order.
- Even after acceptance of the order, OPTILYZ is entitled to refuse to carry out the order, in whole or in part, if the handover would violate any statutory or government regulations. Refusal to carry out an order by OPTILYZ takes places immediately after becoming aware of the conditions which justify the refusal by OPTILYZ.
Scope of service
- OPTILYZ optimizes the selection of the target audience, takes on production of the advertising mail based on designs provided by the client and forwards the advertising mail items ready to be addressed in combination with the target addresses to its partner lettershops. The specific type and scope of the services which OPTILYZ commits to provide to the client stem from the respective single order.
- Minor deviations to other orders or single pieces may occur during production of the addressed advertising mail (hereinafter ‘advertising material’), in particular during printing, cutting and folding. This applies especially to:
- minor colour deviations between two or more orders,
- minor colour deviations from a previous order,
- minor colour deviations between individual sheets within the same order,
- minor cutting and folding tolerances (deviation from the final format) within the range of 1-2%,
- a slight breakup during the folding process as well as deviations in strength or stiffness of the product, which can be traced back to varying placements of the feed direction of the paper,
- variations in quality caused by technical circumstances of the respective machines and material changes during the printing process.
- OPTILYZ’s services are considered rendered with handover of the addressed advertising mail to the postal operator.
- OPTILYZ IS NOT A CONTRACTUAL PARTNER OF THE POSTAL OPERATOR. COMMISSIONING OF A POSTAL OPERATOR WITH DELIVERY OF THE ADDRESSED ADVERTISING MAIL WITHIN THE SCOPE OF THE RESPECTIVE SINGLE ORDER BY OPTILYZ IS MADE ON BEHALF OF THE CLIENT. THE CLIENT GRANTS OPTILYZ THE REQUIRED POWER OF ATTORNEY.
- Unless otherwise set out by individual contractual provisions or mandatory statutory regulations, the current terms and conditions of the postal service provider apply for delivery. Although subject to change, the current version is reflected as follows:
- Asendia Germany GmbH – Terms and Conditions of Asendia (version 05/2018, downloadable at www.asendia.de/allgemeine-geschaeftsbedingungen/), in particular Section 2 (Contractual Relationship), 4 (Services of Asendia), 5 (Rights and Obligations of the Sender) and 6 (Liability).
- Austrian Post International Deutschland GmbH – Brief International Terms and Conditions (version 07/2018, downloadable at https://www.austrianpost.de/agb.html), in particular Sections 1.3 (Contractual Relationship), 1.4 (Exemptions), 1.6 (Services of Austrian Post) and 4 (Liability).
- Deutsche Post AG – Brief National T&Cs (version 02/2017, downloadable at https://www.deutschepost.de/de/a/agb.html), in particular Sections 2 (2) to (4) (Contractual Relationship – Formation and Exemptions), 3 (Rights and Obligations of the Sender), 4 (Services of Deutsche Post) and 6 (Liability).
- Schweizerische Post AG – ‘Postal Services’ Terms and Conditions for Business Customers (version 01/2019, downloadable at https://www.post.ch/de/pages/footer/allgemeine-geschaeftsbedingungen-agb).
- LA POSTE SA – Conditions générales de vente (version 03/2019, downloadable at https://www.laposte.fr/particulier/conditions-generales-de-vente, currently only available in French), Sections 3 (Obligations of LA POSTE), 4 (Obligations of the Sender and Recipient) and 5 (Liability).
- Österreichische Post AG – Brief National Terms and Conditions (version 07/2018, downloadable at https://www.post.at/footer_ueber_uns_agb.php), Sections 1 (2) and (4) (Contractual Relationship, Exemptions and Services of Österreichische Post), 2 (Posting) and 4 (Liability).
- PostNL N.V. – General Conditions for the Universal Postal Service 2018 (Stand 2018, downloadable at https://www.postnl.nl/en/terms-and-conditions, currently only available in English), Sections 2 (Formation of the Agreement), 3 (Exclusions), 4 (Services of PostNL) and 9 (Liability).
- Royal Mail Ltd – Royal Mail General Terms and Conditions (version 04/2019, downloadable at https://www.royalmail.com/terms-and-conditions, currently only available in English), Sections 2.1 to 2.4 (Services of Royal Mail), 2.7 (Exemptions), 3 (Obligations of the Sender) and 14 (Liability).
- OPTILYZ is entitled to partial services or partial deliveries.
- The handover dates specified within the respective single order refer to the handover date, on which the addressed advertising mail is handed over to the postal operator.
- The date of the service provided by OPTILYZ arises from the respective single order. The date set in the respective single order for the handover of advertising material (hereinafter ‘handover’) is merely a planned time for handover to the postal operator (‘planned handover date’). Fixed deadlines require a separate written agreement.
Data backup by the client
The client is solely responsible for data backup. OPTILYZ is entitled to make copies of the advertising material design data (hereinafter ‘designs’) provided by the client. However, there is no obligation for OPTILYZ to do so.
Obligations of the client
- The client must upload the designs in accordance with the print data and data formats predefined on the OPTILYZ Platform or in accordance with any other print data and data format agreed upon between OPTILYZ and the client.
- Prior to making the designs available to OPTILYZ, the client must check the data to be made available for computer viruses using state-of-the-art protection software. The client is obliged to upload all required data before the planned handover date specified in the respective single order.
- This includes but is not limited to the address data as well as the respective designs for the addressed advertising mail. Only the client is responsible for the timely and flawless provision of all documents required for production, printing and dispatch to OPTILYZ.
- This includes, but is not limited to, the printing files and addresses. The postal operator’s design specifications, for example the coding zone and the postage-paid impression, must be met.
Delivery delays and booking changes
- In case of delays caused by the client during the execution of a single order, including but not limited to subsequent change requests by the client, return deliveries of the advertising material to the client or delayed delivery of the required data, designs or advertising material to OPTILYZ or OPTILYZ’s partners, OPTILYZ is not obliged to meet the arranged handover date. Should this cause the planned handover date to be delayed, a new handover date shall be arranged. An entitlement of the client against OPTILYZ to consequently process the delayed single orders with higher priority does not arise. Expenses for waiting times, personnel provision and special transport and subsidiary costs resulting from this delay must be covered by the client.
- Up until two weeks before the planned handover date, the client is entitled to postpone the handover to a date no later than four weeks after the original date. The new handover date only becomes binding upon written confirmation by OPTILYZ. In case any costs have arisen in connection with the original planned handover date, these will be borne by the client in full.
Prices and terms of payment
- The remuneration payable by the client for the services rendered by OPTILYZ stems from the respective single order, the offer, the order confirmation or the framework agreement. All remunerations are in the currency displayed on the OPTILYZ Platform, unless explicitly specified otherwise. Prices stated by OPTILYZ, especially on the OPTILYZ Platform, are quoted, unless stated otherwise, before value-added tax.
- Price quotations in the offers made by OPTILYZ always apply to 1,000 pieces (CPM) or the total price for the quantity indicated in the offer. The items listed in an offer usually comprise printing and shipping of the advertising material, unless shipping is not directly paid by the client, as well as, if required, further relevant items, such as logistics or other additional postal services.
- Invoices issued by OPTILYZ are strictly net and due for payment without deduction within the payment dates stated on the invoice.
- In case of a delay in payment by the client, OPTILYZ is entitled to refuse to execute current orders until payment has been made. This also applies for further orders by the Client.
The Client is only entitled to offsetting if its counterclaim has been legally established, is acknowledged or not disputed by OPTILYZ, or its claim is in a synallagmatic relationship to the claim by OPTILYZ.
Cancellation of order
- The client is entitled to cancel the respective single order up until two weeks before the planned handover date. Where OPTILYZ has already incurred costs at this moment due to commissioning (such as due to the quick commissioning of third parties or the ordering of consumables), the Client shall reimburse OPTILYZ for these costs.
- If the client cancels a single order within two weeks of the respective planned handover date, it shall pay a lump-sum expenditure reimbursement of 50% of the value of the order to OPTILYZ.
- If the client cancels a single order within one week of the respective planned handover date, the client is obliged to pay a lump-sum expenditure reimbursement of 100% of the value of the order.
- The client is allowed to produce evidence that OPTILYZ has not suffered any damage, or has suffered damage that was lower than the compensation claimed according to clause 8.2 or 8.3. OPTILYZ is allowed to produce evidence of higher damage.
If OPTILYZ processes and uses personal data made available by the client, said data processing and usage by OPTILYZ are subject to a separate agreement concerning the order data processing between the client and OPTILYZ.
- The performances by OPTILYZ involve services. Success is only guaranteed when production services are taken over in accordance with the specifications of the Client.
- If the client is entitled to claims for defects due to obligations from contracts for work and materials or contracts for work and services arising from defects in the goods or works, the limitation period for warranty claims in case of a contract for work and materials is one (1) year after delivery of the goods, or in case of a contract for work and services, one (1) year from acceptance. The statutory limitation periods shall remain unaffected in the event of fraudulent concealment of defects, in the event of assumption of a warranty of condition, in the event of injury to life, body or health as well as in cases of intent or gross negligence.
- It is explicitly noted that warranty claims by the client from one single order do not extend to other associated single orders or other orders independent thereof unless a differing agreement has been clearly stated in the respective single order.
- The risk will pass to the buyer as soon as the addressed advertising mail agreed upon in the single order is handed over to the postal operator.
- Assertion of a handover as not in accordance with the contract must include the exact circumstances that form the reason for the claims. Such claims must be communicated in writing (email or contact via the OPTILYZ Platform is sufficient). Assertion of a handover as not in accordance with the contract by the client must be received by OPTILYZ within 10 business days after completion of the handover of the respective single order.
- f no claim is made within this period, the product/service is accepted by the client. OPTILYZ may reject any claims after this period, especially regarding obvious defects.
- In case of justified claims, OPTILYZ shall be granted the opportunity to revise work. Claims against parts of the service do not entitle a claim against the entire service.
- OPTILYZ shall be liable for all damages caused intentionally or by gross negligence, which are the consequence of the absence of a guaranteed condition of the object of performance, which are the consequence of a culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act, in accordance with the statutory provisions.
- In case of breaches of cardinal obligations OPTILYZ shall also be liable for slight negligence. Cardinal obligations are such contractual obligations, whose fulfilment the proper execution of the contract only facilitates in the first place and whose observance the contractual partner may regularly rely on, and whose violation on the other hand endangers the fulfilment of the purpose of the contract. If there is no case of Section 11.1, liability in this case is limited to such damages that must typically and foreseeably be expected to occur in the course of the provision of services such as the contractual services. Irrespective of this limitation, liability is limited to an amount of EUR 3,000,000.00 (in words: three million euros) per case of damage. This also includes the reimbursement of expenses incurred in vain.
- All further liability for damages on behalf of OPTILYZ or its representatives or vicarious agents is excluded.
- The limitation period for damages claims against OPTILYZ is one (1) year except for cases stated in clauses 11.1.
- OPTILYZ does not bear liability if the postal operator postpones the shipping date, or if parts of the shipment are delayed or do not reach the recipient at all.
- OPTILYZ does not bear liability if the postal operator refuses to send the client’s addressed advertising mail due to non-compliance with postal regulations.
- These T&Cs and all single orders are subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention and international civil law.
- Place of jurisdiction for all duties arising from contractual relationships between OPTILYZ and the client is Berlin, Germany.
- Subsequent order changes, collateral agreements and other declarations of intent as well as any transfer of rights and obligations from these T&Cs or the respective single order require written approval (email or contact dialogue on the OPTILYZ Platform is sufficient) by OPTILYZ.
- Should one provision of these T&Cs be, or become, void, ineffective, or unenforceable – in full or in part – (in each case a ‘faulty provision’), the validity and enforceability of the remaining provisions shall not be affected thereby. Instead, the parties agree to replace the ineffective provision by an effective provision, which, in the context of legal possibilities, most closely approximates what the parties would have agreed upon within the sense and purpose of this contract, had they had knowledge of the faultiness of the provision.