These Terms and Conditions for Publishers, the designated Special Terms and Conditions for specific service (the “Designated Service Terms”) – if applicable – and/or the Insertion Order (“IO”), to the extent applicable, entered into by and between JvanH Media B.V., acting under the tradename LeadXchange (hereinafter: “LeadXchange”) or any of its affiliated companies as per the applicable service (this “Agreement“) govern use by and the publisher listed therein (“Publisher”) with respect to the relevant service being provided by LeadXchange.

Publisher acknowledges that by (i) taking any step to order or to request Marketing Service, or to otherwise use the Marketing Service or (ii) clicking “I agree to the terms and conditions” box or the like, shall be deemed as acceptance and agreement to the terms and conditions set forth herein.

Article 1. DEFINITIONS. FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS HAVE THE MEANING SET FORTH BELOW:

1.1.  “Action(s)” means the fulfillment of certain predefined actions by End Users in connection with the Ads.

1.2.  “Ad” or “Advertisement” means text-based, graphical, interactive, rich media and video, or other digital advertisements, including, without limitation, banners, buttons, towers, skyscrapers, pop-ups, pop-unders and video advertisements.

1.3.  “Advertiser” means the person or entity providing the Advertisement and duly registered as the Advertiser of such Ads.

1.4.  “Chargeback(s)” means that an Advertiser or LeadXchange may apply a debit to the Publisher’s account in circumstances of (i) duplicate entry or other clear error; (ii) non-bona fide Actions; (iii) non receipt of payment from, or refund of payment to an End-User by the Advertiser; or (iv) Publisher’s failure to comply with any Service terms or other applicable restrictions.

1.5.  “Collected Data” means all End-User and other information gathered by the use of LeadXchange Service in combination with the placement and/or use of the Ad on a Site.

1.6.  “Confidential Information” means (a) the existence and the substance of any Agreement, (b) any information and knowledge about a Party (Disclosing Party) that is or may come into possession of the other Party (Receiving Party) during the preparation and/or the performance of any Agreement or a request from either Party thereto, (c) any information that is indicated as confidential by either party or (d) any information about or received from the Disclosing Party or Third-Party in connection with the execution of any Agreement, which can reasonably be expected by the Receiving Party to be confidential. Content - All works, text, data, information, or other materials published, announced, or made available by LeadXchange, with the exception of the Software.

1.7.  “Disclosing Party” means the party disclosing Confidential Information to the other party.

1.8.  “End-Users” means users of a Publisher Web Site.

1.9.   “Fees” means those certain fees indicated in the associated IO or the Designated Service Terms.

1.10.  “Intellectual Property Rights” means All rights of intellectual property and related rights, such as copyrights, trademark rights and database rights (where applicable) including IP rights on Products, (Third Party, Standard and Bespoke) Software and any modifications or revisions thereto.

1.11  “LeadXchange” The private company with limited liability, JvanH Media B.V., also acting under the trade name “LeadXchange”, with its registered office in (1114 AN) Amsterdam-Duivendrecht, at Joan Muyskenweg 82, registered in the Commercial Register of the Dutch Chamber of Commerce under file reference number 53182855

1.12  “LeadXchange Service” means the digital media services provided by LeadXchange in connection with distributing and/or promoting and/or displaying the Ads or as otherwise agreed by the parties in connection with the fulfillment of Action(s) determined by an Advertiser.

1.13.  “Network” means Company’s proprietary platform, system and related tools that enable an Advertiser to purchase inventory and make the Ads available for distribution and/or promotion through the Network. At the same time, the Network allows Publisher to receive, download and make available Ads for presentation to its End-Users on Publisher Web Sites, and access an Advertiser’s data subject suppression list, amongst others.

1.14.  “Publisher Web Site” or “Site” means a web and/or mobile and/or other agreed digital site used by the Publisher in connection with relevant Ads and/or Marketing Service.

1.15.  “Receiving Party” means the party receiving Confidential Information.

Article 2. USE OF NETWORK.

2.1.  Use of Network. Use of Network. Publisher agrees to use, and LeadXchange agrees to make available, the Network during the term in order to receive, download and make available Ads from Advertiser to Publisher for use on Publisher Websites according to the terms and conditions of this Agreement and/or any additional limitations or restrictions provided in connection with the relevant Ads (the “Marketing Service”). Publisher will be solely responsible for the marketing and distribution activities used by it in connection with the distributing and/or displaying the Ads, and for any costs or expenses connected therewith.

2.2.  License Grant Subject to the terms and conditions of the Agreement, LeadXchange hereby grants to Publisher a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable, license to use the Ads solely for the limited purpose of providing the Marketing Service (the “License”). The License will immediately and automatically terminate if Publisher does not comply with any of its obligations hereunder or upon termination of this Agreement. All rights which are not expressly granted herein are reserved by LeadXchange. Publisher may not make any use of the Ads in whole or in part in any manner not expressly permitted by the Agreement or subsequently previously allowed by LeadXchange in writing.

2.3.  Availability of Network. Availability of Network. Publisher understands and agrees that from time to time the Network may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which LeadXchange may undertake from time to time; or (iii) causes beyond the control of LeadXchange or which are not reasonably or digital foreseeable by LeadXchange, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Sites or interfaces, Network congestion or other failures.

2.4.  Publisher Site Requirements. Publisher Site Requirements. Publisher acknowledges that each Publisher Website must meet the following criteria: (i) Publisher Web Site is permanently available to End-Users and meets industry standard technical and graphical expectations; (ii) Publisher either owns or is entitled to use the content displayed on all URLs on which the Ad is made available to End-Users; (iii) Publisher Web Site does not violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, criminal laws, spamming, privacy, obscenity, or defamation). You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party; (iv) Publisher Web Site does not contain content that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation; (v) Publisher Web Site does not produce or contain adult content; (vi) the content of Publisher Web Site does not and will not infringe any Intellectual Property Rights or other proprietary rights; (vii) Publisher does not engage in, promote or knowingly facilitate activities such as pirating, hacking or any other activities which are illegal; and (viii) Publisher operates and maintains an efficient “notice-and-take-down” mechanism and policy that complies with applicable law in respect of unlawful activity or content contributed to Publisher Web Site without Publisher’s knowledge or awareness of its unlawfulness.

2.5.  No Modification of Ad. Unless expressly permitted otherwise in writing, Publisher will not edit or modify the Ad in any way, including without limitation resizing, altering, and changing the Ad. Publisher will display the Ads in accordance with all applicable specifications, limitations, and restrictions. LeadXchange may change or revise the content that is posted in the LeadXchange platform at any time, in its sole discretion, and Publisher agrees to use only the most recent version of the content that is posted on the LeadXchange platform. In case of allowed modifications, Publisher shall always seek prior written approval prior to usage. Fees will not be paid by LeadXchange if unapproved Ads have been used.

2.6.  Fraud and Deception. Although LeadXchange has no obligation to monitor your use of the Services, LeadXchange reserves the right to and may perform audits of your use of the Services. Publishers that commit fraudulent activities, will not be entitled to any compensation. Additionally, LeadXchange reserves the right to disclose details relating the fraudulent Actions, including the identity of the violating Publisher without further notice. All proceeds from accounts with fraudulent activity will have to be refunded to Advertisers. The previously mentioned audit rights will not be deemed to impose upon LeadXchange to monitor and/or audit your use of the Services. Fraudulent Actions shall be defined as Actions generated or enhanced through depictive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person.

2.7.  Use in Accordance with Applicable Law. Use in Accordance with Applicable Law. Publisher acknowledges that all marketing activities performed pursuant to this Agreement are in compliance with all applicable national and international laws and regulations, including but not limited to the applicable National Telecommunications Law, the General Data Protection Regulation, or any other applicable law which the Publisher has a duty to comply with.

Article 3. Tracking Code and Reporting 

3.1. All Ads include a special transaction tracking pixel (“Tracking Pixel”) to measure the Actions, which shall apply unless expressly agreed otherwise. Publisher undertakes not to disable, circumvent, modify or otherwise interfere with the Tracking Pixel. In the event that the Tracking Pixel is not correctly functioning or adjusted, Publisher agrees that, may utilize a historical analysis of the Publisher promotion of Advertiser in order to determine an equitable amount of estimated Payouts.

3.2.  LeadXchange shall provide Publisher with access to tracking and reporting tools. Tracking details may not be available on a real-time basis for all Advertisers and there may be reporting delays regarding certain Actions or Services and/or Advertisers.

Article 4. Data Collection 

4.1.  Collected Data. The data collection partners of LeadXchange own all collected data gathered by or through the use of the LeadXchange Service and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by LeadXchange from such data. The Publisher agrees that the data collection partners of LeadXchange shall be permitted to collect data for the purposes of using this information for enhancing the efficiency of the LeadXchange Service. All collected data shall be deemed LeadXchange’s Confidential Information. Any use of such collected data by Publisher shall be only as expressly permitted in this Agreement and in strict compliance with the data collection partners’ privacy policy which is available at their websites. Publisher acknowledges that all personal information provided to LeadXchange has been collected with the relevant individual’s consent, and that you have informed the individual of the purpose for which that information was collected, and that you may provide this information to us for the purposes of use in relation to the Services.

4.2.  End-User notice. LeadXchange requires that Publishers using the Network include clear notices on their websites addressed to End-Users about the collection and use of information by third parties. Such notices should include, without limitation: (a) a description of the type of information that is being collected and its use; (c) an explanation of how, and the purpose for which, such information will be used or transferred to third parties; (d) a link to an appropriate opt-out mechanism, to the extent required.

LeadXchange also requires that - as a condition of these Terms, if personal data in the sense of the EU Regulation 2016/679 (“GDPR”) is concerned Publisher must comply with the GDPR requirements, including but not limited to those matters regarding consent; more specifically Publisher must have obtained consent* from the data subjects for processing their Data. LeadXchange does not accept any liability in this respect.

*For the avoidance of doubt; consent means any freely given, specific, informed and unambiguous indication of the data subjects wishes, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.

Article 5. Publisher Payments. 

5.1.  Fees. Fees. Unless specified otherwise in the IO, LeadXchange will pay Publisher the Fees according to the agreed payout rates under the applicable Ad program with a default payout rate equal to the applicable public payout rate listed within the Network (the “Payout”). The Publisher shall invoice LeadXchange on a monthly basis based on the legitimate Actions listed in the Network (the “Payment Metrics”). Publisher can dispute the Payment Metrics by providing LeadXchange with a notice of dispute that is made no longer than 2 working days after the end of the relevant life cycle. In any case, LeadXchange has the final say with regards to the Payment Metrics and any disputes originated because of them. Once LeadXchange has received the Valid Invoice, LeadXchange will pay the Publisher to the designated account on a 30 calendar days period.

5.2.  Payment Method. Payment Method. The Publisher may select to receive payment in any of the currencies that LeadXchange supports. The currency exchange rates shall be determined in accordance with the “Oanda FX change” continuous trading system. LeadXchange shall determine the conversion rates based upon its operating standards according to the prevailing rates on the date of payment, or upon the basis of historical conversion rates if rates are unavailable. The Fees and debits for Charge-backs, and conversion costs, as calculated by LeadXchange, shall be final and binding on the Publisher. Should LeadXchange be required to pay transactions fees or exchange rate fees, such fees shall be covered by the Publisher and deducted by LeadXchange from each applicable payment.

5.3.  Calculations. Calculations. LeadXchange will be the sole arbiter in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed unless otherwise indicated in Purchase Order. LeadXchange will be solely responsible for determining Fees to Publishers hereunder based on its Payment Metrics which are final and binding.

5.4. Minimum payments are as follows: using wire transfer – EUR, USD, GBP: 250.00. Accrued and unpaid Payouts will not incur any interest. Unless expressly agreed upon in writing, no other payment methods will be used.

5.4 Invoicing Requirements. The Publisher shall invoice LeadXchange in the manner stated herein. Said invoices shall also include the following information to be considered a valid invoice:

• Publisher’s full company information
• LeadXchange‘s’ company information.
• Invoice date.
• Period invoiced.
• Applicable GEO.
• Exact amount of conversions per GEO per period.
• The agreed payout (in EUR, GBP or USD).
• he total amount (in EUR, GBP or USD).
• Bank account and bank information where moneys will be paid.

Article 6. Term; Termination.

6.1.  Term; Termination. The Agreement is deemed effective upon the earlier of: (i) when subsequently accepted by the signature of an authorized employee or agent of LeadXchange; or (ii) when Publisher commences to use any of the Services. The term of the Agreement shall continue until the Service is fully provided. Either party may terminate the Agreement for any reason upon two (2) business days’ prior written notice. For purposes of this Section 6, notice may be sent by email to the party’s account representative specified in the IO (or to such other account representative that a party may specify in writing from time to time) and shall be effective one (1) business day after it is sent.

6.2.  Suspension by LeadXchange. LeadXchange may suspend this Agreement and Publisher’s access to and use of the Network without notice (a) if Publisher permanently fails to provide necessary technical implementation of Ads received, downloaded and made available on its Publisher Web Site; or (b) repeatedly fails to take appropriate and efficient measures to ensure certain editorial quality of its Publisher Website and avoid misuse of content included in or represented by Ads; or (c) upon LeadXchange reasonable belief that Publisher has breached any of its representations, warranties or covenants set forth herein.

6.3.  Credit Risk. Publisher acknowledges that it is aware that LeadXchange has a risk management policy relating to the Services it provides, including as a result of loss and/or due to non-performance by counterparties of their contractual obligations or lack of credit worthiness. LeadXchange monitors its exposure to these counterparties primarily by reviewing credit ratings, financial statements and payment history and reserves the right to introduce or take certain precautionary steps or require certain securities in order to reduce its risk.

6.4. Survival. Any article that, with a view to their nature, are intended to continue to apply after the end of the Agreement, including but not limited to Article 1, 4, 5, 6, 7, 8, 9, 10, 11 and 12, shall survive termination or expiration of this Agreement for any reason, as well as

Article 7. Representations.

7.1.  Mutual. Each party represents and warrants that it has the full right, power, legal capacity and authority to enter into, deliver and fully perform under the Agreement and that its performance hereunder will fully comply with all applicable laws, rules and regulations.

7.2.  Publisher’s Representations, Warranties and Covenants. Publisher further represents, warrants and covenants that (a) Publisher Web Sites meet the requirements according to Section 4 of this Agreement and further, (b) Publisher has read and will comply with LeadXchange’s privacy policy that can be found on the LeadXchange Website; (c) Publisher’s use of the Network will comply with all applicable laws (including that Publisher’s collection, use and storage of data in connection with or resulting from its use of the Network shall comply with all applicable privacy laws); (d) neither Publisher nor its End-User will claim own rights to the Ad;(e) Publisher will only display and distribute the Ad “as is” without illegitimately editing or modifying it and (f) Publisher will immediately and in any case remove Ads and cease to grant its End-Users access to the respective Ad in case such Ads infringe third party’s Intellectual Property Rights or are unlawful or immoral for any other reason. In this case Publisher may not refuse cooperation for any reason.

Separate Agreement. Publisher further represents and warrants that each Designated Service Terms and IO constitutes a separate agreement only with the relevant entity detailed therein and in no event will Advertiser have any legal relations with any other LeadXchange entity in connection with the services provided pursuant to the relevant IO.

Disclaimer. USE OF THE SERVICES AND ANY RELIANCE BY PUBLISHER UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LEADXCHANGE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW LEADXCHANGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Article 8. Limitations of Liability. 

8.1. To the fullest extent permissible pursuant to applicable law.

8.2. LeadXchange shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of content or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the provisions of this Agreement.

8.3. LeadXchange shall not be liable for any damages resulting from incorrect and/or incomplete information provided by the Publisher, or damages that result from the execution of the instructions provided by the Publisher. For the avoidance of doubt, LeadXchange assumes no liability against the Publisher or any third Parties for any claims or proceedings initiated or involving data protection issues. This includes no liability or indemnification of LeadXchange from any claims from any Authority or Court such as the Data protection Authority.

8.4. Notwithstanding anything to the contrary, any aggregate liability of LeadXchange to the Publisher on account of attributable failure in the performance or contemplated performance of the Services, an unlawful act or otherwise, which explicitly includes every failure in the performance of a warranty obligation agreed with the Publisher as well as any liability arising directly or indirectly from data protection laws or regulations to compensation of the direct damage, will be limited per year, shall in no event exceed the total liability (sum payable) of LeadXchange towards the Publisher or any third-Party, for whichever reason, exceed the total amount of fifteen-thousand (15,000) euros (total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise). The exclusions and limitations of liability for LeadXchange referred to above also apply with regard to any warranties and obligations of LeadXchange to indemnify any third-Party. 8.6. Direct damage is exclusively understood as the reasonable expenses incurred by the Publisher to repair or resolve LeadXchange’s management staff shortcomings, to make the performance of LeadXchange conform to the Agreement as well as reasonable costs incurred in the prevention or limitation of the damages and the reasonable costs made in determining the cause and extent thereof.

8.5. The obligation for LeadXchange to pay compensation decided by any courts, will only arise if the Publisher sends written notice to LeadXchange of this damage within four (4) weeks of the damage occurring.

8.6. In deviation of the statutory limitation periods, any claims against LeadXchange and/or any of its affiliates, employees, officers, directors, attorneys or any other representatives of whatever nature and for whatever reason against LeadXchange in connection with the performance of the Agreement shall expire after one (1) year to count from the moment the Publisher became aware, or could reasonable have been aware, of the existence for such rights and powers.

8.8. In the event that any guarantee of LeadXchange fails of its essential purpose or is held to be invalid or unenforceable for any reason, in consideration of the other provisions of the Agreement, the Parties understand and agree that all limitations of liability shall nevertheless remain in effect.

8.7. Publisher agrees to defend, indemnify and hold harmless LeadXchange and its directors, officers, employees, agents, representatives, affiliates, parents, subsidiaries, licensors, suppliers, service providers, Clients and other contractors (collectively, “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action and other proceedings (“Claims”) and for all damages, losses, costs and expenses resulting directly or indirectly from any credit arising out of or relating to: (a) Publisher’s breach of the provisions of this Agreement, including but not limited to any representation or warranty contained herein; (b) the breach of public or private subjects’ rights, in any case any fraudulent or negligent behaviour of the Publisher or its customers and against any claims connected with and/or arising in any manner whatsoever from an incorrect realization of the relevant creative content, a breach of third parties’ rights and/or lack of compliance with the laws and/or the regulations and/or any national and/or international provisions; (c) Publisher’s access to or use of any Services, including without limitation Publisher’s or others’ access of content or other materials available by means of any Services; (d) Publisher’s postings or provision to LeadXchange of information or other materials, as well as the usage of said information or materials by LeadXchange following the instructions of the Publisher; (e) any and all claims, actions and/or penalties received by LeadXchange from any third-Party in relation to the materials, including but not limited to, copyright or trademark law or any other IP right infringement, or (f) any claims from any Authority such as, for example, the Personal Data Authority in connection with any infringement and / or the processing of Personal Data.

8.8. LeadXchange will have the right, but not the obligation, to participate through counsel of their choice in any defense by Publisher of any claim as to which Publisher is required to defend, indemnify, or hold harmless LeadXchange. Publisher may not settle any claim without the prior written consent of LeadXchange.

8.9. If LeadXchange takes legal action against Publisher for any breach of any provisions in this Agreement and a court makes an award in LeadXchange’s favor, Publisher will be responsible for all costs allowable by the courts (meaning legal costs which LeadXchange incur, Publisher’s own costs and any other costs ordered by the court).

8.10. The Parties agree that the terms contained within this article reflect an agreed-upon allocation of risk between the Parties supported by (among other things) the pricing agreed to between the parties, and this allocation is a fundamental part of the basis of the bargain between them. The limitation upon damages and claims set forth in this article 13 are intended to apply without regard to whether other provisions of this Agreement have been breached or have been held to be invalid or ineffective and notwithstanding the failure of essential purpose of any limited remedy provided herein.

Article 9. Confidentiality.

9.1. The Receiving Party shall not at any time during the Term of the Agreement, and for an unlimited period after termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any Third-Party, except to those of the Receiving Party’s representatives who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement. The Receiving Party shall instruct its representatives of its obligations under this Agreement and shall be responsible for any breach of this Agreement by its representatives.

9.2. The Receiving Party will only have a duty to protect Confidential Information disclosed to it by the Disclosing Party.

9.3. The Receiving Party shall: (i) keep the Confidential Information in the strictest confidence; (ii) use the Confidential Information only for the purpose of performing its obligations or exercising its rights under this Agreement; (iii) store the Confidential Information with the same degree of care as the Receiving Party uses to protect its own information of a similar nature, but no less than a reasonable degree of care; (iv) store the Confidential Information so as to prevent any use of Confidential Information in violation of this Agreement and/or unauthorized communication of Confidential Information; and (v) store the Confidential Information in accordance with any particular and reasonable information security requirements of the Disclosing Party for the transmission, storage, or handling of the Confidential Information.

9.4. The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of its Confidential Information that may come to the Receiving Party’s attention.

9.5. This Agreement imposes no obligation upon a Receiving Party with respect to Confidential Information which: (i) the Receiving Party can demonstrate was already in the Receiving Party’s possession or knowledge and which the Receiving Party lawfully acquired other than from the Disclosing Party; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is independently developed by the Receiving Party without a breach of this Agreement, which can be demonstrated by documentary evidence; (iv) is disclosed by the Receiving Party with the Disclosing Party’s prior written consent; or (v) is required by law to disclose.

9.6. Upon receipt of the Disclosing Party’s written request or upon termination or expiration of this Agreement, the Receiving Party shall: (i) immediately stop using all Confidential Information; (ii) promptly return to the Disclosing Party all documents, copies, or other material containing Confidential Information; or (iii) upon the Disclosing Party’s request, destroy all Confidential Information and any copies thereof.

9.7. The Receiving Party acknowledges that disclosure of any Confidential Information may give rise to irreparable injury to the Disclosing Party, which may be inadequately compensable in damages. Accordingly, the Disclosing Party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

9.8. Publisher acknowledges that the Products delivered and/or Services performed, including the Online Services as well as any other proprietary information (the ‘Trade Knowledge’) originating from LeadXchange is always confidential in nature and that the Trade Knowledge contains trade secrets of LeadXchange and its suppliers or producers.

Artical 10. Intellectual property

10.1. Confidentiality. Any data or information supplied by one party to the other party in performing the services or its obligations under this Agreement or collected by LeadXchange under this Agreement including any personal information must be kept confidential and not disclosed to any person, except to the extent that disclosure is required by law, may only be used for the purposes set out in this Agreement.

10.2. Intellectual Property. Each Party will retain all rights in and to its patents, patent applications, patent disclosures, inventions and improvements (whether patentable or not), copyrights and copyrightable works (including computer programs) and registrations and applications therefor, including any software, firmware, or source code, trade secrets, know-how, database rights, drawings and all other forms of intellectual property (other than trademarks) (collectively, Intellectual Property) created, developed or conceived prior to the date of signing of this Agreement or outside the performance of Services and, in each case, without use of or access to any Confidential Information of the other Party. To the extent Publisher creates any updates, derivative works, changes or modifications of any Intellectual Property owned by LeadXchange or Intellectual Property incorporating any LeadXchange Confidential Information in performance of the Services, such updates, derivative works, changes, modifications or Intellectual Property will be owned solely by LeadXchange (except to any portion thereof that incorporates any Intellectual Property or Confidential Information of Publisher, which portion, if any, shall continue to be owned solely by Publisher), and Publisher hereby irrevocably assigns to LeadXchange all right, title, and interest in all Intellectual Property therein to the extent set forth. All other work product independently created by Publisher or by LeadXchange for the Publisher in use or provision of the Services and all Intellectual Property therein will be owned solely by Publisher.

10.3. Duties on Expiration or Termination. On termination or expiry of this Agreement each Party will immediately return all Intellectual Property of the other Party and/or destroy all data and information obtained from the other Party.

10.4. Penalty. If the Publisher is in breach of this article the Publisher shall forfeit to LeadXchange without further notice of default being required, by the mere fact of non-compliance, an immediately payable fine of fifty-thousand (50.000) euros plus five-thousand (5,000) euros per day for each day that the violation continues, without prejudice to the right of LeadXchange to exercise its rights under this Agreement, including to claim performance and/or seek compensation for the losses and expenses thus suffered and/or incurred. Proprietary Rights.

Article 12. General Terms.

12.1.  Governing Law and Dispute Resolution. This Agreement shall solely and exclusively be governed by and construed in accordance with the laws of the Netherlands, excluding where applicable the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980).The competent courts in Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute in connection with this Agreement without prejudice to the right of appeal (hoger beroep) and that of appeal to the Supreme Court (cassatie). In case the courts in Amsterdam are not competent, any other court of the Netherlands will have jurisdiction

12.2. LeadXchange may transfer, assign or novate part or all of this Agreement to any person or entity in respect of any proposed merger, acquisition, asset purchase, debt or equity financing, factoring arrangement or change of control without the consent of the other Party.

12.3. The Publisher may not subcontract any of its obligations under this Agreement without the express written consent of LeadXchange. If such consent is given, The Publisher will remain fully liable to the other Party for all acts or omissions of any sub-contractor who performs the Publisher’s obligation under this Agreement as if such acts or omissions were the acts or omissions of the sub-contracting Party.

12.3.  Waiver. No failure or delay on the part of either party in exercising any right or remedy under the Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy.

12.4.  Amendments and Revisions. LeadXchange reserves the right to change, modify or amend this Agreement, in whole or in part, by posting a revised Agreement. Publisher’s continued use of the applicable Marketing Service after the effective date of the aforementioned change shall constitute acceptance of the revised Agreement.

12.5.  Independent Contractor. Each party is an independent contractor with respect to the other party hereunder. The Agreement shall not be construed to: (i) create any employment, partnership, joint venture, franchise, or agency relationship between the parties; or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

12.6.  Force Majeure. In case LeadXchange shall not be able to meet its obligations under this Agreement due to force majeure, LeadXchange shall promptly notify the Publisher in which case the Parties shall discuss in good faith the necessary steps to be taken.

12.7.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Any such invalid or unenforceable provision shall be replaced or be deemed to be replaced by a provision that is considered to be valid and enforceable. The interpretation of the replacing provisions shall be as close as possible to the intent of the invalid or unenforceable provision.

12.8.  The rights of a Party under this Agreement are without prejudice to all other rights and remedies available to such Party and no failure by any Party to exercise, and no delay in exercising, any right under this Agreement, in the event of breach of contract by any Party hereto will operate as a waiver of such right or any other right under this Agreement.

12.9.  This Agreement, together with any ancillary agreements resulting therefrom such as processing agreements that may be agreed between the Parties, constitutes the entire agreement between the Parties.

12.10.  Unless stated otherwise herein, this Agreement may only be amended by mutual agreement in writing.

13.6.  The Publisher’s general terms and conditions and/or any other conditions of the Publisher are not applicable to any agreement between the Parties and are hereby specifically rejected by LeadXchange. Any reference to such terms and/or conditions in any agreement or document should be null and void. The provisions of this Agreement shall (at all times) prevail should, in spite of the above, any other terms and conditions of the Publisher apply.

12.8. Order of Precedence. In case of any express inconsistency between the rights and obligations of Publisher in these Terms and the IO and/or the Designated Service Terms, the order of precedence shall be as follows: (i) the IO; (ii) the Designated Service Terms; (iii) these Terms, provided that under no circumstances shall Company’s liability or obligations exceed those which are expressly set out in this Agreement.

12.9. Suppression Lists. LeadXchange will make available to the Publisher, through the Publisher Portal, the Advertisers’ email data subject suppression list. The Publisher shall be solely responsible and liable regarding any wrongdoing with regards to the data provided in such a suppression file or any matter relating to the wrongful execution of what is contained in this Section

12.10.  The Publisher shall only use the suppression file for data-suppression purposes. The Publisher shall de-duplicate the send-out email database against the records contained in the suppression file and shall under no circumstance email said users with Ads relating to said Advertiser. This list will be updated on an ongoing basis; being a notice via email sent to the Publisher when the suppression list has been updated. The Publisher shall be responsible for downloading the latest version of the suppression file and using the suppression file prior to any sendout. In the case the Suppression List is provided in an encrypted manner (SHA-256, MD5 or others), the Publisher agrees and hereby certifies it will perform the necessary actions or operations to de-duplicate (match and eliminate) these hashed values against its sending database prior to sending.

12.11. Publisher Portal. The published will be provided with access to a Publisher Portal (https://panel.thetrackingplatform.com) or other URL as notified from time to time by LeadXchange. In order to use the Publisher Portal, the Publisher needs Login Details. The Publisher is responsible for keeping the Login Details secret. As soon as the Publisher realizes or has reason to suspect that his Login Details are in the hands of unauthorized parties, the Publisher must immediately notify LeadXchange thereof, without prejudice to the Publisher’s own responsibility to take immediate and effective action, for example by changing his Login Details. The Publisher will at all times be responsible and liable for the use of the Publisher Portal by third parties via the Login Details of the Publisher. The Publisher shall indemnify LeadXchange for all damage and costs arising from and/or in connection with the use of Content and/or Publisher Portal by third parties via the Login Details of the Publisher.

These Terms of Use were last updated on June 28th, 2019.