- 1. Subject and scope
These OptiTouch General Terms and Conditions apply to the OptiTouch Service offered by welcome media under the Contract and to the use of the OptiTouch Planning Tool enabling the sale of Campaigns by the Partner to Advertisers.The OptiTouch General Terms and Conditions may be read at any time at www.welcome.media.
The General Terms and Conditions apply exclusively to the OptiTouch Service; the services provided by the Postal Operator (including the postal delivery services of Communications) are beyond the scope of the General Terms and Conditions.
The general or special terms and conditions of the Partner do not apply to the OptiTouch General Terms and Conditions.
- 2. Definitions
In the Contract & in the General Terms and Conditions, the following terms have the following meanings:
The person belonging to the staff of the Partner who presents the “Primary User” profile in the OptiTouch Planning Tool.
Legal entities and professionals active in the sale of products and/or services, customers of the Partner, to which it proposes OptiTouch Campaigns.
An advertising campaign consists in the circulation, by post, of a Communication to the Target.
The addressees of the Communication.
The procedure by which the Partner requests the use of the Service from welcome media.
The message of a commercial and advertising nature that explicitely targets the promotion and sale of the advertiser’s products and services to the target group.
The document by which welcome media notifies the Partner of its acceptance of the Order and the precise terms of the Service.
This document, which constitutes an integral part of the Contract, containing the general terms and conditions that apply to the Service and the use of the OptiTouch Planning Tool enabling the sale of Campaigns by the Partner to Advertisers.
The document, whcih constitutes an integral part of the Contract, stating the tariffs and remuneration policy applicable to the Service.
The Contract entered into by welcome media and the Partner with regard to the Service, comprising the following contractual documents:(1) the OptiTouch Agreement, (2) the designation of the main user/admin user of the tool, (3) the OptiTouch Tariff Conditions and (4) the General Terms and Conditions of OptiTouch.
The document, which is an integral part of the Contract, containing the Partner’s details and some practical arrangements of the Service.
The data, including personal data such as names and postal addresses, rented by welcome media from the Data Renter and used to establish the profile of the Target based on the criteria the Partner enters into the OptiTouch Planning Tool.
The method of circulation of a Campaign comprising, for a precise postcode, the delivery of the Communication solely to the persons selected based on the criteria the Partner entered into the OptiTouch Planning Tool. In the case of Household Targeting, the Communication is an addressed Communication.
Any information received by a Party (the “Receiving Party”), its employees or other persons working on its behalf, in whatever way, concerning the other Party (the “Issuing Party”) or other companies belonging to the group to which the Issuing Party belongs, its human resources policy, staff, projects, strategies, suppliers, customers, pricing policies, cost structure and investments under or during the performance of the Contract.
The third party from which welcome media rents data.
Any day other than Saturday, Sunday or a statutory national public holiday in Belgium.
The postal operator at which welcome media drops the Communications for delivery.
The welcome media application accessible at https://welcome.media/optitouch/ that enables the Partner to simulate and submit Campaigns.
The legal entity with registered office in Belgium and with as corporate purpose a media agency activity that enters into the Contract with welcome media.
A party to the contract, being either welcome media or the Partner.
The welcome media service known as “OptiTouch” that offers a tool for planning and managing Campaigns (such as selecting the Target, optimising the Campaign budget and selecting a Campaign date) and integrates the operational management of the delivery of the Campaign (such as inserting into envelopes, addressing and franking of Communications, dropping Communications at the Postal Operator and managing local taxes).
Tariffs applicable to the Service
The method of delivery of a Campaign comprising, for a precise postcode, the delivery of the Communication to all letter boxes in the zone in question. In the case of Zone Targeting, the Communication is an unaddressed Communication.
- 3. Sale of Campaigns
The Partner acts as a professional intermediary between welcome media and the Advertisers. This means that:
- (i) The Partner acts exclusively in its own name and on its own behalf, with regard to both welcome media and the Advertisers. The Partner is not authorised to bind welcome media or to enter into any undertaking whatsoever on behalf of welcome media;
- (ii) only the Partner is bound in a contractual relationship with welcome media, to the exclusion of the Advertisers, and is solely responsible for managing all questions and complaints of the Advertisers;
- (iii) the Partner is free to set the price of the Campaigns offered to the Advertisers and is solely responsible for invoicing the Advertisers;
- (iv) the Partner protects welcome media against any complaint or demand made against welcome media by the Advertisers with regard to or ensuing from the Service and/or the Campaigns.
The Partner undertakes:
- (i) under the Contract, to sell the Campaigns exclusively to Advertisers that are legal entities or professionals;
- (ii) never to use the Service for personal ends or, generally, for ends other than the sale of Campaigns to the Advertisers;
- (iii) to comply with all legal stipulations in force as well as the honest commercial practices and all reasonable instructions communicated by welcome media.
- 4. Order process
The Partner initiates its Order through the OptiTouch Planning Tool. The Order process comprises various steps:
- (i) In accordance with the instructions provided in the OptiTouch Planning Tool, the Partner states the criteria of the desired Campaign:
- · the estimated budget;
- · the format of the Communication (leaflet, postcard or printed matter in an envelope)
- · the geographical coverage;
- · where applicable, the sociodemographic (such as age, gender and household composition) and other criteria enabling the OptiTouch Planning Tool to establish the profile of the Target.
- (ii) The OptiTouch Planning Tool instantaneously counts the Data corresponding to the criteria entered by the Partner and generates a simulation of the appropriate method of delivery for the Campaign (Zone Targeting and/or Household Targeting) as well as the estimated Campaign budget. It should be noted that:
- · the Data are not transmitted to the Partner;
- · the number of Targets is not final and may change within a 1% margin upwards or downwards without welcome media needing to state this;
- (iii) If the Partner agrees to the Campaign simulation, the Partner places the Order by stating the week and where applicable the part of the week or the day in or on which it would like the mail items managed in the Campaign to be delivered.
- (iv) welcome media will check the available delivery capacity for the Campaign in question at the Postal Operator and notify the Partner of its findings within 3 business days of receiving the Order through the Partner.If the Campaign cannot be fully confirmed because of insufficient delivery capacity in the zone in question, welcome media will contact the Partner by phone to try to find an acceptable alternative solution.
- (v) welcome media then issues an Order Confirmation containing the details of the Campaign to the Partner. The Partner will be bound to welcome media as soon as it accepts the Order Confirmation.
- (vi) After receiving the Order Confirmation any request to adapt the Campaign will trigger the reassessment of the Campaign budget taking account of the aspects of the campaign that have been changed. Furthermore, a request to adapt a Campaign is only admissible if it arrives before the deadline for the provision of material by the Advertiser. Otherwise, welcome media will do its utmost to ensure that the campaign is delivered at the agreed time, but can no longer guarantee the schedule will be fulfilled.
- (vii) In addition, any request by the Advertiser to cancel the Campaign must be issued no later than 12 calendar weeks before the delivery date. Failing this, welcome media reserves the right to demand fixed compensation equal to a percentage of the amount that would have been involved if there had been no cancellation in accordance with the following arrangements:
- · 15% of the invoiced amount in the event of cancellation between the twelfth and the eighth calendar week before the delivery date;
- · 25% of the invoiced amount in the event of cancellation between the eighth and the fourth calendar week before the delivery date;
- · 50% of the invoiced amount in the event of cancellation between the fourth and the second calendar week before the delivery date;
- · 100% of the invoiced amount in the event of cancellation within two calendar weeks of the delivery date.
The amount in compensation will be calculated on the total value of the Campaign as stated on the Order Confirmation.
- 5. Creation and delivery of the Communication at welcome media
Once the Order has been placed, welcome media provides the Partner with a technical data sheet stating all the information it needs to create and deliver the Communication, including:
- (i) the technical specifications relating to the chosen format (such as dimensions and weight);
- (ii) a design template;
- (iii) the compulsory information to be stated on the Communication (such as responsible publisher and local tax contact);
- (iv) the date on which the Partner must communicate the exact weight of the Communication or supply a “blank” Communication (needed to calculate the amount of local taxes);
- (v) the date on and address to which the Communication must be delivered to welcome media.
The Communication must be created in accordance with the instructions on the technical data sheet. The Partner also undertakes to fulfil the following obligations:
- (i) The content of the Communications in the same Campaign must be identical;
- (ii) The Communication must only contain messages of a commercial or promotional nature regarding the Advertiser’s products and/or services, which excludes all direct or indirect services for third parties;
- (iii) Directly or indirectly referring to the selection of the Target by welcome media or to the Data and services of the Data Renter is prohibited;
- (iv) Directly or indirectly referring to the selection criteria used by the OptiTouch Planning Tool to establish the Target’s profile is prohibited;
- (v) Creating Communications that are contrary to the regulations in force (including the regulations governing trading practices, intellectual property rights and privacy) or that infringe the rights of third parties or that are inappropriate or contrary to standards of public order or good behaviour is prohibited.
For checking purposes, and prior to delivery, the Partner provides welcome media with a copy (or draft) of the Communication for approval. welcome media reserves the right to reject the content of the Communication, stating the reasons for this rejection. In this case the Order will be cancelled.
The Partner must deliver the Communications, bearing neither addressees’ details nor the franking mark, on the date and at the address stated by welcome media.
- 6. Preparation and drop of the Communication
After receiving the Communications, welcome media is responsible for:
- (i) separate out the volume according to the method of delivery (Zone targeting and/or Household Targeting);
- (ii) in the event of Household Targeting only: inserting the Communications into envelopes, addressing and franking;
- (iii) drop the Communications at the Postal Operator;
- (iv) manage the local taxes (declaration, receipt of the register and payment notifications) on behalf of the Advertiser.
- 7. Use of the OptiTouch Planning Tool
The partner designates the Primary User of the OptiTouch Planning Tool when signing the Contract. The Primary User is responsible for the administration (registration, creation, management and deactivation) of the accounts granted by the Customer to its users and for the proper management of the OptiTouch Planning Tool. The Primary User designates the users of the OptiTouch Planning Tool and acts as intermediary between these users and welcome media.
The Partner receives a provisional user name and password to be able to access the OptiTouch Planning Tool. The user name and the password may be changed at any time by the user in the OptiTouch Planning Tool.
The Partner undertakes not to use the OptiTouch Planning Tool except within the framework of its relationship with welcome media and not to make it available to third parties.
welcome media may interrupt the availability of the OptiTouch Planning Tool, without compensation being payable, among other reasons for maintenance or if the Service is changed. Such an interruption will be announced as welcome media deems appropriate. This interruption cannot in any way invoke welcome media’s liability or create a right to compensation and interest. However, such interruptions will not exceed a reasonably acceptable duration and they will also be scheduled at reasonably acceptable times for the Partner.
- 8. Term, renewal and cancellation of the Contract
- 8.1. Term
The Contract is entered into for the term stated in the Agreement.
- 8.2. Renewal
welcome media will communicate the new tariffs and/or new conditions for the following contractual year to the Partner no later than 1 month before the end of the contractual term by sending the new Tariff Conditions and/or General Terms and Conditions. If, in the month following this notification, the Partner does not provide notice of its intention not to renew the Contract, the Contract will be tacitly renewed on the basis of these new Tariff Conditions and/or General Terms and Conditions for a new term of (1) year.
Given that the Campaigns are priced on the basis of the tariffs that apply when they are delivered, welcome media reserves the right to revise confirmed Orders by changing the Campaign budget or the quantity of Campaign material to be delivered, as chosen by the Customer.
- 8.3. Cancellation
Each Party is entitled to cancel the Contract at any time subject to 1 month’s/months’ notice by registered mail.
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 the other Party:
- (i) Is guilty of intentional violation of the Contract, fraud or any behaviour that contravenes Economic Law Code or other regulations; and/or
- (ii) Ceases or threatens to cease its activities.
In addition, each Party is entitled to end the Contract without further formality by registered letter if:
- (i) A liquidator or administrator is appointed to administer the property or assets of the other Party; and/or
- (ii) The other Party is declared bankrupt, is clearly insolvent or suspends payments; and/or
- (iii) 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 as a consequence continues to be bound by the obligations imposed by the other Party under the Contract).
In addition, 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.
- 9. Declarations of the Partner
The Partner declares:
- (i) that it is a duly established legal entity that exists for an unlimited term and is duly registered with all relevant public bodies;
- (ii) that its corporate purpose is a media agency activity;
(iii) that it 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;
- (iv) that the conclusion of the Contract does not constitute an infringement of the Customer’s articles of association, any judgement, ruling, order or administrative decision applicable to it or any agreement, legal stipulation or other obligation it is bound by;
- (v) that the Partner has duly concluded the Contract and the obligations of the Partner under the Contract are lawful, valid and enforceable with regard to the Partner.
- 10. Tariffs, invoicing and payment
- 10.1. Tariffs
The tariffs are stated in the Tariff Conditions.The tariffs are valid for the entire term of the contractual year. Prices are not including VAT. VAT, all other indirect taxes, all duties, taxes and levies now and in the future, of whatever nature (excluding tax on income and profit) imposed or authorised by another public authority on the occasion of or by virtue of the service or the use of the OptiTouch Planning Tool will always be payable by the Partner and where applicable be due and added to the abovementioned price. The amount of the taxes as calculated on the basis of the format, the weight and the exact number of Communications will be subsequently taken into account and invoiced to the Partner.
- 10.2. Payment arrangements
The provision of the Service demands that the Partner fulfils the solvency and credit conditions set by welcome media and that welcome media has granted a payment term to the Partner.
In principle, the payment term is thirty (30) days.
welcome media may grant another term or make the granting of the term subject to the fulfilment of conditions, which will be stated in a special communication sent by welcome media to the Partner, including:
- (i) The constitution of a bank guarantee in favour of welcome media;
- (ii) The transfer to welcome media of a non interest-bearing provision; and/or
- (iii) The conclusion of a standing order for the payment of invoices of welcome media.
If the Partner fails to fulfil the solvency and credit conditions by the due date or if the Partner has not been granted a payment term or if the Partner fails to fulfil its obligations as stated in the special communication concerning the payment term or if a change in the Partner’s credit or solvency situation (including a change in the credit limit set by welcome media or the total amount of invoices of the Partner) no longer justifies the payment term granted to the Partner, welcome media reserves the right to no longer grant a payment term and to unilaterally cancel the Contract by operation of law (that is to say without further legal formality) by notice addressed to the Partner by registered mail.
Where applicable, the amount of the security is stated in the special communication. welcome media reserves the right to unilaterally adjust this amount, among other things based on the Partner’s credit or solvency situation (including a change to the credit limit set by welcome media or the total amount of the invoices of the Partner). In anticipation of the adjustment of the security, welcome media reserves the right to suspend the provision of the Service and the use of the OptiTouch Planning Tool.
If the Partner does not owe welcome media any money at the expiry of all contractual relations, the bank guarantee will be released or the advance payment reimbursed to the Partner on the request of the Partner by registered mail.
- 10.3. Disputes concerning invoices
If an invoice is disputed by the Partner in part or in whole, the Partner must contest the invoice within ten (10) Business Days of the sending of this invoice. This claim must state the date and number of the invoice and be addressed, together with a copy of the Order Confirmation on which the invoice is based, to welcome media, attn Pierre Bertrand, Muntcentrum/Centre Monnaie, 1000 Brussels. After the end of this term of ten (10) days, the Partner is deemed to have accepted the invoice. If the Partner disputes only part of the invoice rather than the entire invoice, it remains obliged to pay without restriction the undisputed part of the invoice. The Partner cannot claim any compensation or lien with regard to welcome media.
- 10.4. Non-payment of invoices
In the event of non-payment of an invoice when it falls due, the Partner will automatically owe the interest and compensation in accordance with the law of 2 August 2002 to combat late payment in commercial transactions. In the event of non-payment at the end of this term, welcome media also reserves the right to claim from the Partner fixed compensation of 50 euros to cover the administrative collection charges and to offset the amount against the amounts that welcome media has collected at the request of the Partner.
- 11. Liability
- 11.1. Liability of the Partner
The Partner is liable for all damage that welcome media may suffer due to a failure to fulfil the obligations of the Contract that are attributable to the Customer, notably a failure resulting in a false declaration or the transmission of erroneous information.
The Partner indemnifies welcome media against any claim by a third party (including Advertisers) relating to any losses ensuing from the illegal or negligent use of the OptiTouch Planning Tool and, generally, the Service.
- 11.2. Liabilities of welcome media
welcome media has a best endeavours obligation and undertakes to use all reasonable means at its disposal to provide the Service.
welcome media can only be held liable towards the Partner for direct losses caused to the Partner by its gross negligence or fraud in the performance of the Contract.
The liability of welcome media towards the Partner can never lead to compensation for indirect losses of a financial, commercial or other nature, such as loss of time, loss of customers, loss of earnings, increase in general costs, disruption of a commercial activity, claims of third parties, loss of profits, loss of data, reputation or expected savings, arising in the provision of the services.
welcome media does not assume any commitment or liability:
- (i) with regard to the correct, complete, up-to-date or precise nature of the Data;
- (ii) in the event of improper use of the Service by the Partner;
- (iii) with regard to the content of the Communication (such as racist, xenophobic or defamatory content);
- (iv) with regard to the unavailability of facilities that are not under its full control or any change to, suspension or interruption of the Service;
- (v) with regard to the data entered by the Partner in the OptiTouch Planning Tool with a view to providing the Service;
- (vi) with regard to the mistakes made by the Postal Operator or in the event of late delivery of the Communications.
welcome media’s liability can no longer be invoked following the occurrence of an event beyond its will and control (force majeure), including a disturbance or full or partial strike, the interruption of the accessibility or functioning of the OptiTouch Planning Tool, communication problems, computer or server breakdown and so on.
If welcome media’s liability can be invoked with regard to these OptiTouch General Terms and Conditions, the compensation of the losses will be limited to the payment of a sum covering the direct losses actually incurred, taking all cases together, or the amounts the Partner invoices to welcome media for the Campaign in question, whichever is higher.
- 12. Personal data protection
The personal data of the Partner’s members of staff that the Partner shares with welcome media will be used by welcome media to provide the Service and, unless an objection is made, for the commercial promotion of the products and/or services issued and/or distributed by welcome media.
The Partner guarantees that its members of staff have consented to the processing of their personal data by welcome media, including their phone numbers for the purposes of commercial promotion. The Partner also guarantees that it has notified these persons of their right to object to this processing.
If these persons wish to oppose the processing of their personal details for this purpose, they may notify welcome media in writing of this at any time.They also have a right to inspect and rectify their personal data, which right they may exercise by sending a signed and dated written request to welcome media, Privacy department, Centre Monnaie / Muntcentrum, at 1000 Brussels.
- 13. Intellectual property
The intellectual property rights with respect to drawings, models, literary works and/or documents (stored in a durable way or in machine language), reports, software and databases, as well as the methods, knowhow, concepts and other innovations welcome media owns or holds a licence to, continue to belong to welcome media as the owner or licence holder and the ownership of all intellectual property rights arising from a change to or adaptation of these rights, knowhow and innovations automatically belong to welcome media.
With the exception of the licensing rights granted by welcome media to the Partner with a view to the use by the Partner of the OptiTouch Planning Tool and any other computer programmes, the Partner must refrain from using the rights, knowhow and innovations of welcome media in any way without prior written permission from welcome media. The Partner will ensure observance of this undertaking by its employees, agents and subcontractors.
Each Advertiser continues to hold the intellectual property rights contained in every Communication entrusted to welcome media and is entirely responsible for the content of these Communications. The Partner will indemnify welcome media in full in the event of third party actions relating to an infringement of these intellectual property rights.
- 14. Administration of the proof
Transactions, network operations, electronic communications, connections and other electronic actions between the Partner and welcome media can be proven by means of log files and transaction files, which welcome media may keep on electronic media. The Partner accepts the probative force of these data. This possibility of furnishing proof does not prevent Parties from providing any other proof by means authorised by the law on the subject.
- 15. Contact and complaints
The Partner may contact welcome media by email (firstname.lastname@example.org) or contact its account manager to ask for information or make a complaint.
- 16. Other contractual stipulations
- 16.1. Amendments
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, welcome media may amend the Contract (including the OptiTouch General Terms and Conditions) on the basis of this amendment, ruling, judgement or other intervention.
welcome media is obliged to notify the Partner in writing of the abovementioned amendments no later than one month prior to this amendment taking effect. If it 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 welcome media of these amendments. In that event, the Contract shall end on the last day of the month following the month in which the Partner has made known its non-acceptance of these amendments.
- 16.2. Hierarchy of contractual documents
In the event of contradiction between the stipulations of these contractual documents, the following order applies to determine which of the contradictory stipulations prevail: (i) the Agreement, (ii) the Tariff Conditions and (iii) these OptiTouch General Terms and Conditions.
- 16.3. Subcontracting
welcome media reserves the right to employ subcontractors to perform the Contract, for which it is fully responsible.
- 16.4. Transferability
None of the Parties has the right to transfer the Contract without prior written permission from the other Party, on the understanding that welcome media may always transfer the Contract to a company affiliated to welcome media.
welcome media has the right to reject a transfer requested by the Partner. In addition, welcome media may make its permission conditional on the fulfilment of the conditions it sees fit, without the Partner having any claim or right to compensation from welcome media.
- 16.5. 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.
- 16.6. Waiving of rights
If a Party fails to demand compliance with a right granted by virtue of the Contract, this cannot be considered to entail the waiving of that right or of the legal remedies thereto and shall not compromise the validity of the Contract. The waiving of rights with respect to a violation of the Contract does not entail any waiving of rights with respect to past or future violations of the Contract.
- 16.7. Independence of Parties
Unless otherwise agreed, each Party shall act as an independent entity when entering into or fulfilling the Contract. Unless otherwise agreed, no single stipulation of the Contract and no behaviour of the Parties in the performance of the Contract will lead or be assumed to lead to the establishment of a company, association, temporary combination, joint venture or any other partnership involving the Parties.
- 16.8. 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, contracts, requests, offers or declarations between Parties with respect to the subject of the Contract.
Applicable law and settlement of disputes
The Contract is governed by Belgian law. The courts of the district of Brussels have exclusive jurisdiction to rule on any dispute with respect to the establishment, interpretation or performance of the Contract.
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