OptiRetour General Terms and Conditions - Version 2017 1. Subject and scope (d) These General Terms and Conditions apply to the OptiRetour service offered to the Customer by exbo under the Contract and which consists in (i) the collection of mail items of the Customer that could not be delivered to the addressee and that are returned to the return address by bpost, (ii) the encoding of these undeliverable mail items and (iii) the sending in a digital file containing selected information relating to these undeliverable mail items, followed by (iv) the destruction or the return to the Customer of these undeliverable mail items. These General Terms and Conditions may be read at any time at www.exbo.be/conditions. The Contract applies solely to the Service; the services provided by bpost (including the postal delivery services for mail items sent by the Customer and the return of undeliverable mail items to the return address) are excluded from the scope of the Contract. exbo has no authority to represent bpost in any capacity whatsoever and does not act as a subcontractor or as an executing agent on behalf of bpost. The general or special terms and conditions of the Customer do not apply to the Contract. 2. Definitions Under these General Terms and Conditions the following terms have the meanings as defined below: Agreement: The document, which is an integral part of the Contract, containing the Customer s details and the practical arrangements of the Service. bpost: The limited company under public law bpost, with registered office at Centre Monnaie,, listed in the Brussels register of legal entities under number BE 0214.596.464. Business Day: A day other than Saturday, Sunday or a national public holiday in Belgium. Contract: The contract concluded between exbo and the Customer relating to the Service, comprising these General Terms and Conditions, the Agreement and the Tariff Conditions. Customer: The natural person or legal entity that has concluded the Contract with exbo. Entity: The Customer entity or department that manages the Postal Returns. exbo: The limited company exbo, with registered office at, 1000 Brussels, listed in the Brussels register of legal entities under number BE 0472 598 153. File: The electronic file containing the information relating to the Postal Returns detailed in article 4.2 of these General Terms and Conditions. Force Majeure: A situation not resulting from the fault of one of the Parties and rendering impossible the performance of the contractual obligations of this Party, in accordance with the criteria developed by means of Belgian jurisprudence (including strikes, lockouts, weather events, accidents...). General Terms and Conditions: This document, which is an integral part of the Contract, containing the general terms and conditions applicable to the Service. Mail Items: The mail items sent by the Customer. exbo SA Page 1 of 8 20/01/2017
Party: A Party to the Contract, being the Customer or exbo depending on the circumstances. PO Box: The post office box hired by exbo at bpost for the purpose of the return of Postal Returns of the Customer under the Contract. Postal Returns: The Mail Items that are identified by bpost as undeliverable to the addressee and that are the subject of the Service. Recycling: The destruction by exbo of the Postal Returns after the sending to the Customer of the File relating to these Postal Returns. Return to the Customer: The transport by exbo of the Postal Returns to the Customer after the File relating to these Postal Returns is sent to the Customer. Service: The service, the constituent parts and arrangements of which are described in article 4 of these General Terms and Conditions, offered by exbo under the Contract and marketed under the OptiRetour name. Tariff Conditions: The document, which is an integral part of the Contract, stating he tariffs applicable to the Service. 3. Survey and hierarchy of the documents forming the Contract The Contract comprises the following documents: These General Terms and Conditions The Agreement The Tariff Conditions To conclude the Contract the Parties must sign the Agreement and the Tariff Conditions. In the event of contradiction between the stipulations of these General Terms and Conditions, the Agreement and the Tariff Conditions, the following order applies to determine which of the contradictory stipulations prevail: (i) the Agreement, (ii) the Tariff Conditions and (iii) the General Terms and Conditions. 4. Constituent parts and arrangements of the Service 4.1. Collection of the Postal Returns by exbo exbo hires a PO Box and collects the Postal Returns in the PO Box beginning on the date of entry into force of the Contract set down in the Agreement. 4.2. Encoding of Postal Returns exbo encodes all the Postal Returns that are returned to the PO Box to create a File to be sent to the Customer. The File includes the following information on each Postal Return: (i) The addressee stated on the Postal Return. The addressee will be identified differently in the File, depending on the chosen address method of the Mail Item: If the Customer has displayed the bpost (Mail ID or registered mail) bar code on the Mail Item, the addressee will be identified in the File through this bpost bar code. To be able to use Mail ID or registered mail bar codes on the mail items, the Customer must first be certified by bpost. If the Customer displays another number code on the Mail Item (such as a code corresponding to the customer number), the addressee will be identified in the File through this number code. If the Customer has only displayed the addressee s address on the Mail Item (without bar code or other number code), the addressee will be identified in the File through the address. exbo SA Page 2 of 8 20/01/2017
(ii) (iii) The reason for the Postal Return stated by bpost on the Postal Return (red labels). The following return reasons are possible: Incorrect address No longer receiving (mail at this address): the addressee has moved or died Unclaimed: the addressee did not come to collect the mail item Rejected: the addressee did not wish to accept the mail item and left it with the deliverer Unknown reason The date on which the Postal Return was encoded. 4.3. File sending exbo sends the File to the Customer. The choice of the Customer with regard to the arrangements for the sending of the File (frequency, sending method, sending address and File format) is set down in the Agreement. 4.4. Recycling or Return to the Customer exbo will effect the Recycling or the Return to the Customer of the Postal Returns within 7 Business Days of the File being sent. The Customer can choose between Recycling or Return to the Customer in two ways: (i) (ii) The Customer incorporates a special code in the Mail ID bar code or other number code affixed to the Mail Item: Recycling of Postal Returns: code 1 Return to the Customer: code 2 The Customer uses more than one PO Box: One PO Box for Postal Returns that must be recycled Another PO Box for Postal Returns that must be returned to the Customer The Customer must affix to the Mail Item the references of the PO Box that corresponds to its choice. If the Postal Return is in film or plastic packaging, exbo always removes and destroys this film or plastic packaging prior to Recycling. exbo SA Page 3 of 8 20/01/2017
5. Obligations of the customer 5.1. Mail Items franked by bpost The Customer must have its Mail Items that are the subject of this Service franked by bpost. 5.2. Displaying the references of the PO Box on the Mail Item The Customer must use the references of the PO Box stated in the Agreement as return address on each Mail Item, preferably on the back of the Mail Item so that the Postal Returns are sent to the PO Box and exbo is able to collect and encode them. The Customer is strongly advised not to mention any other expeditor address on the Mail Items than the PO Box. If the Customer mentions another return address on the Mail Item (such as its own sender s address) alongside the PO Box, the Postal Return may be physically returned to that address. In that case, the Postal Return cannot be collected and encoded by exbo and the information relating to the Postal Returns will not appear in the Files exbo sends to the Customer. 5.3. Estimation and representative Mail Items To help exbo plan the workload and conduct the necessary tests, when the Contract is concluded the Customer must provide exbo with: (i) (ii) An estimation of the quantity of Postal Returns the Client expects to receive on an annual basis, depending on the type of Mail Item, the format and the address method of the Mail Item. This estimation is stated in the Agreement; Representative specimens of the Mail Items, depending on the type of Mail Item, the format and the address methods of the Mail Item subject to the Service (especially in the event of use of the addressing method with bpost bar codes). 5.4. Problems regarding the sending of the File In the event of problems regarding the sending of the File by exbo (such as an unreadable or corrupted File), the Customer must notify exbo within 6 days of receiving this File. 6. Decentralized management of Postal Returns by the Customer The Customer that manages its Postal Returns in a decentralized way can receive separate Files for each Entity. There are two possibilities: (iii) (iv) The Customer incorporates a special code for each Entity in the Mail ID bar code or other number code displayed on the Mail Item. When the Postal Returns are treated by exbo, exbo generates separate Files per Entity. The Customer uses a different PO Box for each Entity. The Customer must mention on the Mail Item the reference of the PO Box that corresponds to the Entity. The use of a different PO Box for each Entity also allows the Customer to be invoiced at different invoice addresses (for instance according to the type of Mail Item). 7. Tariffs The tariffs applicable to the various constituent parts of the Service are stated in the Tariff Conditions. The tariffs are valid for the entire term of application of the Tariff Conditions. The tariffs are stated exclusive of VAT or other taxes and levies. All current and future indirect taxes, local taxes, levies and duties and deductions (excluding tax on income and profit) that may be collected by any authority are always payable by the Customer and are due in addition to the agreed tariff. exbo SA Page 4 of 8 20/01/2017
8 INVOICING 8.1 General exbo sends the invoices to the Customer at the invoicing address stated in the Agreement. exbo invoices the Customer in the following way: (i) An invoice relating to the applicable fixed fees is sent to the Customer when the Contract enters into force. In the event that the Contract is renewed, the invoice relating to the applicable recurring fixed charges will be sent within one month of this renewal. (ii) The invoices relating to the variable charges are sent to the Customer on a monthly basis. The invoices are payable in full in one go to the exbo bank account stated on the invoices by direct debit at the Customer s bank or by bank transfer within thirty (30) calendar days of the invoice date. 8.2 Disputes concerning invoices If the Customer disputes an invoice in part or in whole, the Customer must contest the invoice within twenty (20) Business Days of the date of this invoice. At the end of this term of twenty (20) Business Days, the Customer is deemed to have accepted the invoice. If the Customer disputes only part of the invoice rather than the entire invoice, it remains obliged to pay without restriction the undisputed part of the invoice. 8.3 Non-payment of invoices Any amount not paid by the due date shall attract, by operation of law and without prior notice, the legal interest from the due date until the date of full payment. exbo also reserves the right to demand, without prior notice, a fixed indemnity of 15% of the invoiced amount or 65 euros, whichever is higher. The failure to state the interest rate or the fixed compensation in any notice of default does not mean in any way that exbo renounces the right to demand interest and/or fixed compensation at a later date. The Customer cannot claim any compensation or right of retention from exbo. 9. Date of entry into force, term and end of the Contract The Contract is concluded for a term of one (1) year, beginning on the date stated in the Agreement. exbo will notify the Customer of the new Tariff Conditions and/or General Terms and Conditions applicable to the next contract year prior to the expiry of the contract term. The Contract is renewed on the basis of these new Tariff Conditions and/or General Terms and Conditions for a new term of one (1) year as soon as exbo takes receipt of the new Tariff Conditions duly signed by the Customer and in any case before the expiry of the contractual term. The Contract will not be renewed if no such acceptance is received. Without prejudice to its other rights, each Party has the right to cancel the Contract by operation of law (that is to say without further legal formality) by registered mail if: (i) The other Party is guilty of an intentional infringement of the Contract, fraud or any behaviour that is contrary to the legislation on market practices; and/or (ii) The other Party ceases or threatens to cease its activities; and/or (iii) A liquidator or administrator is appointed to administer the property or assets of the other Party; and/or (iv) The other Party is declared bankrupt, is clearly insolvent or suspends payments; and/or (v) The other Party is liquidated (with the exception of a liquidation as part of a reorganisation that occurs in such a way that the solvent company established exbo SA Page 5 of 8 20/01/2017
as a consequence continues to be bound by the obligations imposed by the other Party under the Contract). (d) (e) The Parties may unilaterally cancel the Contract at any time by registered mail with immediate effect, without prior notice and without payment of any compensation, if new legal or regulatory stipulations are introduced that obstruct the continued performance of the Contract. The Customer undertakes to no longer send Mail Items bearing the PO Box references ten (10) Business Days before the end of the Contract. Any Postal Returns dropped in the PO Box after the end of the Contract will be immediately recycled. 10. Use of information contained in the Files The Customer is not permitted to use the information contained in the Files other than for the internal ends of updating its own databases and the day-to-day management of its commercial activity. In any event, the Customer is not permitted to use all or part of the information contained in the Files for commercial ends (including selling or hiring out such information). In any event, the Customer is not permitted to share all or part of the information contained in the Files with third parties (including companies that are affiliated to it within the meaning of article 11 of Belgium s Companies Code). 11. Guarantee Liability (d) exbo gives the Customer a File containing certain information stated on the Postal Return. This information may be incorrect, incomplete, irrelevant, unreadable or corrupted. Given that this information does not come from exbo (but from bpost or the Customer itself), the Customer expressly acknowledges that exbo can in no event be held liable for any losses incurred by it or a third party as a consequence of the information shared with the Customer within the framework of the Service. exbo cannot be held liable for any losses incurred by the Customer or a third party as a consequence of the Recycling and/or the Return to the Customer of Postal Returns within the timeframes specified in the Contract (that is with a delay in comparison to the direct return by bpost to the Customer). The Parties agree in any case that exbo s financial liability will be limited to compensation of direct losses ensuing from its serious misconduct or intentional fault and cannot exceed 50% of the amount invoiced to and paid by the Customer in the course of the preceding twelve months or, if this is zero, in the course of the preceding period. Notwithstanding any Contract stipulation to the contrary, no Party can be held liable for the (full or partial) nonfulfillment of its obligations under the Contract resulting from Force Majeure. 12. Protection of personal information The Parties shall process the personal information within the meaning of the Belgian law of 8 December 1992 shared with them under the Contract in due compliance with the applicable provisions, including the provisions of the said law and shall inform their staff and their subcontractors of these provisions. The Parties shall process this information exclusively in accordance with the instructions of the Party that shares the information and for the ends for which they are shared. The Parties shall take appropriate technical and organisational measures to prevent any unauthorised access, destruction or change. exbo SA Page 6 of 8 20/01/2017
13. Declarations of the Customer legal entity (d) The Customer declares that it is a duly established legal entity that exists for an unlimited term and is duly registered with all relevant public bodies. The Customer has the requisite competences, has made all notifications and has received all the internal and external agreements and authorisations necessary to conclude the Contract and to perform, in accordance with the provisions of the Contract, the undertakings that it has entered into under the Contract. The conclusion of the Contract does not constitute an infringement of the Customer s articles of association, any judgement, ruling, order or decision applicable to it or any agreement, legal stipulation or other obligation it is bound by. The Customer has duly concluded the Contract and the obligations of the Customer under the Contract are lawful, valid and enforceable with regard to the Customer. 14. Other contractual stipulations 14.1. Amendment of the Contract Unless stipulated otherwise, this Contract may be amended only by means of a written agreement between the Parties. However, in the event of the amendment of the applicable legislation or in the event of a ruling, a judgement or another constraining intervention of a relevant authority, exbo may amend the Contract on the basis of this amendment. exbo is obliged to notify the Customer in writing of the abovementioned amendments no later than one month prior to these amendments taking effect. If the Customer does not accept these amendments, the Customer may cancel the Contract unilaterally in writing without compensation being due within one (1) month of being notified by exbo of these amendments. In that event, the Contract shall end on the last day of the month following the month in which the Customer notified exbo of its non-acceptance of these amendments. At that point, the settlement and invoicing shall occur pro rata temporis. 14.2. Subcontracting The Parties agree that exbo is authorised to substitute itself within the framework of the performance of the Service. However, exbo is entirely liable for the performance of the tasks entrusted to persons that it has substituted. 14.3. Transferability None of the Parties has the right to transfer the Contract without prior written permission from the other Party, on the understanding that exbo may always transfer the Contract to a company affiliated to exbo. 14.4. Confidential information The Parties agree that all information received by one Party from the other Party under the Contract shall be handled as confidential information and shall retain this confidential character even after the end of the Contract. 14.5. Independence of Parties The Contract can never be interpreted as establishing a partnership, joint venture or any other association between the Parties and no Party can be considered to be the agent or employee of the other Party. exbo SA Page 7 of 8 20/01/2017
14.6. Waiving of rights The failure of any Party to insist upon its rights under the Contract in a timely way or to respond to a failure of the other Party can never be considered to entail a permanent renunciation by this Party to insist upon this right or respond to this failure at a later date. Likewise, the partial exercise of a right by a Party does not prevent the Party from exercising this right more fully at a later date or exercising another right. 14.7. Whole agreement The Contract comprises all agreements between the Parties with respect to the subject of the Contract and replaces all other earlier verbal or written agreements, arrangements, requests, offers or declarations between Parties with respect to the subject of the Contract. 14.8. Severability The nullity or unenforceability of part of the Contract for whatever reason shall not affect the validity and enforceability of the remaining stipulations of the Contract. 14.9. Applicable law and settlement of disputes The Contract is governed by and shall be interpreted in accordance with Belgian law. The courts of the legal district of Brussels will have the final ruling on any dispute concerning the validity, interpretation or performance of the Contract. * * * exbo SA Page 8 of 8 20/01/2017