General Terms and Conditions on the Provision of Mailings by optilyz GmbH
Version: October 2022
These General Terms and Conditions (hereinafter “T&Cs”) form the basis of all contracts, orders, services, or other agreements (hereinafter in each case “Individual Order”) that refer to these T&Cs and are concluded between optilyz GmbH, Neue Schönhauser Str. 19, 10178 Berlin, Germany (hereinafter “OPTILYZ”) and the respective contractual partner of OPTILYZ (hereinafter “Client”) and only if Client acts in the exercise of his commercial or self-employed activity (and is, therefore, an entrepreneur within the meaning of Sec. 14 German Civil Code (BGB)) or is a legal entity under public law or a special fund under public law.
The General Terms and Conditions of OPTILYZ shall apply exclusively to each Individual Order. Deviating, conflicting or supplementary General Terms and Conditions of Client shall only become part of the contract if and insofar asto the extent that OPTILYZ has explicitlyexpressly agreed to their validity in writing.
Each Individual Order represents an independent contract, which has no legal effects on further Individual Orders, if any, concluded between OPTILYZ and the Client.
Insofar as the provisions of the Individual Order contradict these T&Cs, the provisions of the Individual Order shall prevail.
§1st Conclusion of Contract
- OPTILYZ shall be bound only upon express order confirmation by OPTILYZ. Mere confirmations of receipt, which OPTILYZ immediately sends to the potential client when orders are placed via the website of OPTILYZ (https://www.optilyz.com/) (hereinafter “OPTILYZ Platform”), do not constitute an order confirmation.
- Even after acceptance of the order, OPTILYZ is entitled to refuseits execution in whole or in part, if the transfer would violate legal or official regulations. The refusal by OPTILYZ towards Client shall be made immediately after OPTILYZ has become aware of the circumstances constituting such a violation.
§2nd Scope of Services
- OPTILYZ enables and supports the Client in the implementation of advertising campaigns. Based on the Client’s drafts, OPTILYZ undertakes the production of the advertising mail, which is then handed over to the partner letter shops for dispatch, together with the delivery addresses. The ready-to-address advertising mail is sent to the target addresses by the partner letter shops. The concrete type and the exact scope of the services to be rendered by OPTILYZ to the Client are specified in the respective Individual Order.
- Minor deviations from other orders or individual pieces may occur in the production of the addressed advertising mail (hereinafter “Advertising Material”), in particular the printing, cutting, and folding. This applies in particular to:
- minor color deviations between two or more orders,
- minor color deviations compared to a previous order,
- minor color deviations between individual sheets within an order,
- minor cutting and folding tolerances (=deviations from the final format) in the range of 1-2%,
- a slight break-up during folding as well as deviations in the strength or stiffness of the product, which is due to different placements of the running direction of the paper,
- fluctuations in quality due to the technical conditions of the respective machines and material changes during printing.
- The product advertising mail is realized by OPTILYZ via a cooperation partner. The service of OPTILYZ is rendered with the delivery of the addressed advertising mail to the postal service provider.
- OPTILYZ IS NOT A CONTRACTUAL PARTNER OF THE POSTAL SERVICE PROVIDER. THE COMMISSIONING OF THE POSTAL SERVICE PROVIDER WITH THE DELIVERY OF ADDRESSED ADVERTISING MAIL WITHIN THE SCOPE OF THE RESPECTIVE INDIVIDUAL ORDER BY OPTILYZ IS EXCLUSIVELY ON BEHALF OF THE CLIENT. THE CLIENT GRANTS OPTILYZ THE NECESSARY POWER OF ATTORNEY.
- Unless otherwise stipulated in individual contracts or mandatory legal provisions, the current terms and conditions of the postal service providers shall apply to the delivery. These are subject to change, the current status is reflected as follows:
- Asendia Germany GmbH –- General Terms and Conditions of Asendia (as of 01/2022, available at www.asendia.de/allgemeine-geschaeftsbedingungen/), in particular sections 2 (Contractual Relationship), 4 (Services of Asendia), 5 (Rights and Obligations of the Sender) and 6 (Liability).
- Austrian Post International Deutschland GmbH General Terms and Conditions Letter International (as of 01/2020, available at https://www.austrianpost.de/agb.html), in particular sections II (contractual relationship & exclusions), IV (services of Austrian Post) and (IV (liability).
- Deutsche Post AG GTC Letter National (as of 03/2021, available at https://www.deutschepost.de/de/a/agb.html), in particular sections 2 (2) to (4) (contractual relationship establishment and exclusions), 3 (rights and obligations of the sender), 4 (services of Deutsche Post) and 6 (liability).
- Schweizerische Post AG General Terms and Conditions “Postal Services” for Business Customers (as of 01/ 2022, available at https://www.post.ch/en/pages/footer/general-terms-and-conditions-gtc).
- LA POSTE SA –- Conditions générales de vente (as of 04/2022, available at https://www.laposte.fr/particulier/conditions-generales-de-vente, currently only available in French), there sections 3 (Obligations of LA POSTE), 4 (Obligations of the sender and recipient) and 5 (Liability).
- Österreichische Post AG General Terms and Conditions Letter Mail National (as of 07/ 2022, available at https://www.post.at/co/c/agb-brief), there sections 1 (2) and (4) (contractual relationship, exclusions, and services of Austrian Post), 2 (abandonment) and 4 (liability).
- PostNL N.V. – General Conditions for the Universal Postal Service 2018 (as of 2018, available at https://www.postnl.nl/en/terms-and-conditions, currently only available in English, there sections 2 (Establishment of the contractual relationship), 3 (Exclusions), 4 (Services of PostNL) and 9 (Liability).
- Royal Mail Ltd –- Royal Mail General Terms and Conditions (as of 01/2021, available https://www.royalmail.com/terms-and-conditions), there the sections 2.1 to 2.4 (Services of Royal Mail), 2. 8 to 2.14 (Exclusions), 3 (Obligations of the sender) and 14 (Liability).
- Canada Post Corporation – General Terms and Conditions with a Standing Offer Agreement (as of 01/22, available at https://www.canadapost-postescanada.ca/cpc/doc/en/support/customer-guide/smartmail-marketing.pdf), there sections 8 (Canada Post’s Obligations), 11 (Criteria for Qualification), 9 (Customers Obligation) and 26 (limitation of liability).
- New Zealand Post Limited – Public Contract (as of 07/18, available at https://www.nzpost.co.nz/about-us/who-we-are/terms-of-business/standard-terms-products-services/public-contract), there section “Our Service Offering & Commitments“ and „Your Commitments & Acknowledgements“.
- Australian Postal Corporation – Australia Post Terms and Conditions (as of 12/21, available at https://auspost.com.au/content/dam/auspost_corp/media/documents/ap-terms-and-conditions.pdf), there sections 7B (Australia Post’s obligations), 5 (Right of refusal), 7 (Customer obligation) and Part E (Australia Post’s Liability).
- OPTILYZ is entitled to partial services or partial deliveries.
- The delivery dates stated in the respective Individual Order refer to the time of delivery of the addressed advertising mail to the postal service provider.
- The date for the performance of the service by OPTILYZ results from the respective Individual Order. The date for the handover of the Advertising Material (hereinafter “Transfer”) specified in the respective Individual Order is merely the scheduled date of Transfer to the postal service provider (“Notified Transfer Date”). Fixed dates for Transfer require a separate written agreement.
§3rd Data Backup by Client
Data backup is the sole responsibility of the Client. OPTILYZ is entitled to make copies of the provided files with the drafts of the Client’s Advertising Material (hereinafter “Drafts”). However, OPTILYZ is not obliged to do so.
§4th Responsibilities of Client
- Client shall upload the Drafts to the OPTILYZ Platform by the print data and file formats specified on the OPTILYZ Platform or otherwise agreed between Client and OPTILYZ.
- Before providing the Drafts to OPTILYZ, the Client shall check the file(s) to be provided for computer viruses with a protection program that corresponds to the latest technical state of the art.
- Client shall upload all required data, in particular the address data, as well as the respective Drafts of the addressed advertising mail on the OPTILYZ Platform before the Notified Transfer Date in the respective Individual Order.
- Client is solely responsible for the timely and flawless provision of the documents required for production, printing, and dispatch, in particular the print files and addresses, in compliance with the design specifications of the postal service provider, such as the coding zone and the postage- paid impression, to OPTILYZ.
§5th Delays in Delivery and Rebookings
- In case of delays in the implementation of an Individual Order for which Client is responsible, in particular, subsequent change requests by Client, return of the Advertising Material to Client, or delayed deliveries of the required data, drafts, or Advertising Material to OPTILYZ or the partners of OPTILYZ, OPTILYZ is not obligated to meet the agreed upon Transfer dates. If in this case a Notified Transfer Date is delayed, a new Transfer date will be arranged. Client shall have no claim to priority processing of subsequent Individual Orders delayed thereby against OPTILY. Expenses for waiting periods, provision of personnel as well as special transport and direction costs resulting from this have to be borne by the Client.
- Client has the right to postpone the Transfer to a later date before the Notified Transfer Date. The new Transfer date becomes binding only after written confirmation by OPTILYZ. If OPTILYZ has already incurred costs in connection with the originally Notified Transfer Date, the Client shall bear these costs in full.
§6th Prices and Payment Conditions
- The remuneration to be paid by Client for the services rendered by OPTILYZ results from the respective Individual Order, the offer, the order confirmation, or the Master Agreement. Unless otherwise agreed, all agreed remunerations shall be in the currency displayed on the OPTILYZ Platform. The prices quoted by OPTILYZ, in particular on the OPTILYZ Platform, in connection with the services of OPTILYZ, unless otherwise stated, exclude the statutory value-added tax.
- The prices quoted in OPTILYZ’s offers are valid for 1,000 items (CPM or CPP) or the total price for the quantity specified in the offer. The items in the offer usually include printing and postage of the Advertising Material if not paid directly by the customer, as well as other relevant items such as logistics or other additional postal services if required.
- The delivered order volume at the postal service provider may be lower than that ordered by the customer due to postage optimization. Minor deviations of the invoice amount resulting from this shall not affect the originally issued invoice and shall be paid by the Client.
- The invoices of OPTILYZ are due for payment net without any deduction according to the deadlines stated in the invoices.
- In case of default of payment by Client, OPTILYZ may refuse further execution of a current order until receipt of payment. This also applies to further orders of the Client.
Client shall only have the right to set off if his counterclaim has been legally established, is not disputed or acknowledged by OPTILYZ or his claim is synallagmatic to the claim of OPTILYZ.
§8th Order Cancellation
- Client has the right to cancel the respective Individual Order. If OPTILYZ has already incurred costs at this point due to the order (e.g. due to the fixed commissioning of third parties or the ordering of consumables), the Client has to reimburse OPTILYZ for these costs in full.
- Client will receive an invoice for the cancellation costs.
- A cancellation of the order by the Client must be in text (e-mail).
- The services of OPTILYZ are services under German law. Success is only owed in the case of taking over production services according to the Client’s specifications.
- If Client is entitled to warranty claims against OPTILYZ due to defects of the item or the work in case of conclusion of an Individual Order based on obligations under a contract for work and services or a contract on the delivery of services, the limitation period for warranty claims shall be one (1) year from delivery of the item in case of a contract on the delivery of services, and one (1) year from acceptance in case of a contract for work and services. However, the statutory limitation periods shall remain unaffected in the event of malicious concealment of a defect, the assumption of a guarantee of quality, injury to life, limb, or health, and the event of intent or gross negligence.
- It is expressly clarified that warranty claims of Client arising from an Individual Order shall not extend to any other Individual Orders concluded in connection therewith or to further orders independent thereof unless expressly agreed
otherwise in the respective Individual Order.
- The risk of loss or destruction of the mail shall pass to the Client as soon as the addressed advertising mail agreed in the respective Individual Order has been handed over to the postal service provider.
- Any claim that the Transfer has not been carried out by the agreement must contain the exact circumstances giving rise to the complaint. Such complaints must always be made in writing (e-mail or message via the contact form on the OPTILYZ Platform is sufficient). Sec. 377 of the German Commercial Code (Handelsgesetzbuch) shall apply mutatis mutandis to the assertion of a claim for non-contractual performance of the Transfer of addressed advertising mail by the Client.
- If no complaint is made within this period, the goods/service are deemed to have been accepted by the Client. Complaints after this period, especially in case of an obvious defect, can be rejected by OPTILYZ.
- In case of justified complaints, OPTILYZ shall be allowed to remedy the defect. Complaints about a part of the performance do not entitle one to complain about the whole performance.
§ 10th Liability
- OPTILYZ shall be liable for all damages caused intentionally or by gross negligence, which areis the consequence of the non-existence of a guaranteed quality of the subject of performance, which is the consequence of a culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act (Produkthaftungsgesetz), by the statutory provisions.
- In case of breach of cardinal obligations OPTILYZ shall also be liable in case of slight negligence. Cardinal obligations are such contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and the observance of which the other party to the contract may regularly rely on, and the violation of which endangers the achievement of the purpose of the contract on the other side. If there is no case of § 10 No. 1, the liability, in this case, shall be limited to such damages, the occurrence of which must be typically and foreseeably expected in the context of the provision of services such as 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 futile expenses.
- Apart from that, liability for direct and indirect damages (loss of profit, consequential damages) – irrespective of the legal ground – of OPTILYZ as well as of its vicarious agents and assistants is excluded.
- The limitation period for claims for damages against OPTILYZ shall be one (1) year except in the cases of § 10 No. 1.
- OPTILYZ shall not be liable in case the postal service provider postpones the date of dispatch or in case parts of the consignment are delayed or do not reach the consignee.
- OPTILYZ is not liable in case the postal service provider refuses to send addressed advertising mail to the Client due to non-compliance with postal regulations.
- These T&Cs and all Individual Orders are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and international private law.
- The place of jurisdiction for all obligations arising from the contractual relationships between OPTILYZ and the Client is Berlin.
- Subsequent changes of the order, additional agreements, and other declarations of intent as well as transfers of rights and obligations of Client arising from these T&Cs or the respective Individual Order require written consent (e-mail or message via the contact form on the OPTILYZ Platform is sufficient) by OPTILYZ.
- If any provision of these T&Cs is or becomes void, invalid, unenforceable, or unenforceable – in whole or in part (each a “Faulty Provision”), the validity and enforceability of the remaining provisions of these T&Cs shall not be affected thereby. The Parties already now agree, to reach a mutual understanding in the future to replace the Faulty Provision by a provision which, to the extent legally possible, comes as close as possible to what the parties would have agreed on by the spirit and purpose of this Agreement if they had recognized the faultiness of the provision.