TERMS AND CONDITIONS
For Advertisers purchasing leads
General Terms & Conditions
Definitions
In these general terms and conditions (hereinafter “general conditions”), the following definitions have the following meanings:
a) Leads Company: A private company with limited liability with the name Leads Company Ltd, having its registered office at 30 Ortensia, Triq Il-Papa Piju XII, MST 2651 Mosta, Malta, registered with the Maltese Chamber of Commerce under number C92239, with Maltese VAT number MT 26337916, and its subsidiaries and other affiliated companies (herafter “Leads Company”)
b) The other party / Client: any natural person or legal entity that engages Leads Company or acquires data sets (also referred to as leads)or any other activities from Leads Company; and
c) Agreement: any agreement between Leads Company and the other party for the supply of data sets.
1. Applicability
These general conditions shall apply to all quotations, offers and agreements of Leads Company. By placing an order, the other party shall accept the applicability of these general conditions. By entering into an agreement with Leads Company, the other party waives the applicability of any general conditions used by it, howsoever denominated, so that all our agreements shall exclusively be governed by the conditions as used by Leads Company. These general conditions comprise general provisions and include the following specific condition(s) and further definition(s):
Data purchase conditions: meaning cosponsor and/or co-registration, included and/or inserted in an information carrier of Leads Company and/or attached thereto.
2. Offers, Formation and Amendment of Agreements
All quotations and offers issued by Leads Company shall be without engagement. Only after written (order) confirmation or factual performance by Leads Company the agreement shall come into effect. Amendments to assignments shall be binding on Leads Company only to the extent confirmed in writing or factually performed by Leads Company.
In no event shall any agreed delivery dates be deemed to be firm, unless expressly agreed otherwise. Therefore, in the event of an untimely performance, Leads Company shall not be in default until given written notice of default.
Any quotations and/or statements by Leads Company with respect to its services, the address database, numbers of leads, lead quality, transmission issues etc. shall be issued to the best of Leads Company’s knowledge but shall not be binding. Therefore, Leads Company expressly makes reservations regarding any discrepancies and/or changes of any nature and scope whatsoever. At all times Leads Company reserves the right to change, at its discretion, the format, frequency and way of offering and/or distributing, without granting the other party the right to modify or terminate the agreement.
3. Payment
Unless expressly agreed otherwise, Leads Company’s invoices shall be paid within fifteen days of the date of the invoice. Any right to set-off by the other party shall be excluded.
In the event of late payment the other party shall be immediately in default without any notice of default being required. Without prejudice to its other obligations, the other party shall pay an interest of 1% per month on the outstanding amounts as from the due date of the invoice until the date of payment in full. In the event of non-payment or late payment all judicial procedural and execution costs, as well as the administrative expenses and extrajudicial collection costs shall be borne by the other party. The extrajudicial collection costs shall be equal to 15% of the invoiced amount, with a minimum of €250,-.
Leads Company shall at all times be entitled both prior to and after conclusion of the agreement to require security for payment or advance payment, suspending its performance of the agreement until such security has been provided and/or such advance payment has been received by Leads Company.
All services provisioned shall remain the property of Leads Company until receipt of payment in full of the amounts due by the other party to Leads Company in respect of any service, including interest and costs.
Determination of fees shall be subject to the provisions in the applicable Insertion Order.
4. Dissolution
Without any obligation arising on the part of Leads Company, Leads Company may dissolve all or part of its agreement with the other party with immediate effect, by registered letter and without any judicial intervention being required, in the event that:
a. the other party files for a moratorium on payment of its debts or insolvency or is declared insolvent or offers its creditors a composition outside insolvency or in the event that any of its assets are attached;
b. the other party ceases its activities, ceases to pursue its objects according to its articles of association, resolves to wind up its company, otherwise loses its legal personality or transfers or merges its business;
c. the other party fails (properly) to perform any of its obligations ensuing from the relevant agreement, or fails to perform any such obligations in good time, and fails to cure such default within seven (7) calendar days of written summons by Leads Company;
d. Leads Company ceases the provision of the relevant service. The provisions of this paragraph shall not affect Leads Company’s other legal rights in the event of nonperformance by the other party, such as the right to claim performance and/or payment of full damages.
5. Intellectual Property Rights
The intellectual property rights and similar rights, including copyrights, trademark rights, patent rights, neighbouring rights, rights to protection of performance, including database rights, in all publications issued and other information services provided by Leads Company are owned by Leads Company and/or its licensors. Nothing in Leads Company’s publications or information services may be reproduced and/or disclosed without the express prior written consent of Leads Company and/or its licensors.
6. Confidentiality
All information provided by Leads Company to the other party, including all information with respect to Leads Company’s services, any documentation, software and applications provided by Leads Company, shall be deemed confidential information. The other party shall:
a. treat this information strictly confidential and shall not disclose this information, or provide this information to third parties unless the other party is obliged to do so under a judicial order or at the order of a supervisory authority;
b. only use this information for the purpose for which it was provided to the other party.
7. Personal data
Leads Company records data of natural persons for the purpose of performance of the promotional service and whenever such persons contact Leads Company in connection with the provision of services. These data will be used for the performance of an agreement and to inform persons of relevant products and services of Leads Company, its operating companies and carefully selected third parties, which may be of interest to them. If the natural person involved does not wish to receive any such information, he/she may give written notice to that effect to: support@leadscompany.eu
8. Force Majeure
If, in Leads Company’s reasonable opinion, non-faulty performance by Leads Company is or will be impossible due to force majeure, meaning circumstances beyond its control, it shall be entitled to terminate all or part of the agreement or to suspend performance of the agreement temporarily, without any obligation arising on its part to pay compensation.
Force majeure shall include, but not be limited to, threat of war, war, insurrection, molest, strike, boycott, business interruption, traffic or transport interruption, (data) network interruption, government measures, scarcity of raw materials, natural disaster, fire, nuclear reaction, machine breakdown and otherwise all circumstances under which, according to the principles of reasonableness and fairness, Leads Company cannot be required to perform all or part of the agreement.
In the event that upon occurrence of the situation of force majeure Leads Company has already performed part of its obligations or can perform only part of its obligations, it may invoice the part performed or the part it will be able to perform separately and the other party shall pay such invoice as if it related to a separate contract.
9. Liability
The liability of Leads Company, its employees and the persons for whom Leads Company is responsible and/or liable shall:
a) in all events be excluded, save in the event of intent or gross negligence on the part of the senior executive staff of Leads Company; and
b) in case Leads Company is nevertheless held liable, Leads Company’s liability shall in all events by limited to compensation which is attributable to Leads Company up to the invoice value of the part of the agreement from which the liability ensues, and Leads Company shall in no event be liable for indirect or consequential compensation (including compensation due to delay or lost profits).
All (exchanged) information, including recommendations, ideas, opinions and/or instructions, has been composed with due care and to the best of Leads Company’s knowledge, however, Leads Company cannot in any way warrant the correctness and completeness of the information. Therefore, Leads Company waives any liability for damage, of any nature whatsoever, resulting from any acts and/or decisions based on such information. The other party is emphatically recommended not to use such information out of context, but to rely on its professional knowledge and experience and to verify the information to be used. The contents of own advertisements have been composed by or on behalf of advertisers and their correctness, completeness and lawfulness are not verified by Leads Company. Therefore, Leads Company waives any liability for the contents and design of advertisements.
Any complaints, as to the agreement, shall be submitted to Leads Company in writing prior to the performance of the agreement between the other party and Leads Company, however in any event within three days of the date on the agreement and/or closure date.
Any complaints, as to Leads Company’s performance of the agreement, shall be submitted to Leads Company in writing as soon as possible, however in any event within three days of discovery of a defect in the performance, or within three days of the time at which the defect in the performance should have been discovered, in the absence of which all rights of the other party vis-à-vis Leads Company shall be forfeited.
10. Compliance with laws and regulations
The other party shall comply with all applicable laws and regulations including any applicable codes of conduct. If assistance is needed. Leads Company can provide such assistance when there is a similar relevance with the services provisioned by Leads Company.
11. Miscellaneous
Leads Company may assign its rights and obligations under the agreement to a business with which it is affiliated in a group, or assign such rights and obligations to a third party in connection with transfer of Leads Company’s business or any part thereof, or as part of the transfer of a title, a product or a service of Leads Company, without any further consent of the other party being required. By entering into an agreement with Leads Company, the other party consents in advance to such a transfer. Leads Company shall timely inform the other party of such a transfer.
Leads Company may amend the present conditions. Amendments shall also apply to agreements already entered into, starting from the time indicated by Leads Company. Leads Company shall announce any such amendments well in advance in a way to be chosen by Leads Company, which may be, in the case of small amendments, the publication of the amended conditions on the Leads Company website, and/or reference to the amended conditions in the correspondence of Leads Company. Only if the amendment of the conditions has drastic consequences for the rights and obligations of the parties, the other party shall be entitled to request Leads Company to continue the agreement on the basis of the unchanged current conditions rather than on the basis of the amended conditions.
In the event of changes to the name and/or address details, the other party shall notify Leads Company in writing of both the former and the new details at least fourteen days prior to the date on which the change will take effect. If and to the extent that pursuant to the law any provision of these conditions is deemed unreasonably onerous vis-à-vis a party being a consumer (i.e. a natural person not acting in the course of a profession or business), and such other party nullifies such provision, the nullified provision shall be superseded by a provision which is not unreasonably onerous but promotes Leads Company’s interests to the extent possible.
12. Disputes and Applicable Law
Any disputes with respect to the agreements entered into by Leads Company shall be submitted to the competent court in Amsterdam, the Netherlands or – at the discretion of Leads Company if it submits a dispute – to another competent court having territorial jurisdiction pursuant to the law. All agreements entered into with Leads Company shall be governed by the laws of the Netherlands. The applicability of the Vienna Sales Convention is excluded.
Data Purchase Conditions
1 Definition
Assignment: the agreement in which a co-sponsor or coregistrant issues an assignment to Leads Company for the provision of a lead, the preparation and supply of survey questions, in any form whatsoever, and/or the performance of other services, such as posting, monitoring and examination, all in the broadest sense.
Participant: any person registering with Leads Company or being registered by a cosponsor and/or coregistrant in order to process his/her response and/or interests.
Enrolments: the registration of a Participant either by cosponsoring and/or coregistration services.
2 Applicability
All agreements, quotations and/or offers of Leads Company and enrolments with respect to co-sponsor and/or co-registration services shall be governed by the present data purchase conditions with respect to Participants, in addition to the general provisions.
3 Rights of use (contents and restrictions)
a) The other party shall receive the data sets (also referred to as leads) for the type of marketing as indicated in the agreement (e-mail, telephone and/or postal) and the other party warrants that he shall only use the data sets for such type of marketing in accordance with the agreement’s conditions.
b) The other party warrants (i) not to advertise services, products or materials in breach of laws and regulations applicable in the country (or in the countries) where the marketing campaigns of the other party can be published or, in any case, where the content published on the other party’s websites is accessible; (ii) not to use content that is obscene, offensive, violent, libelous, discriminatory, detrimental to the personal dignity, blasphemous or which contains statements that are racist or advocating the inferiority or superiority of a race, people or culture vis-à-vis other races or minorities, the denial or justification of crimes against humanity; incitements to hate and violence, sexually explicit, pornographic or pseudo-pornographic contents, threats or harassments; information or messages that instruct in illegal activities or that may adversely affect third parties; incitements to hazardous behavior that risks being emulated by underage subjects or to drugs or to animal abuse; images not suitable for subjects under the age of 18; (iii) not to put in place illicit or fraudulent behavior pursuant to applicable laws or regulations; (iv) to comply with all the stipulations of the agreement and applicable law. The other party will indemnify and hold harmless Leads Company against and for any loss and/or damage resulting directly or indirectly from or relating to any breach by the other party of the warranties in this Clause 4.
c) When Leads Company agrees to supply data sets for long-term use, the other party undertakes and agrees to use a data set for e-mail advertising only.
d) When Leads Company agrees to supply a data set for single use telephone marketing purposes, the other party shall only make a single successful contact by telephone to each data set (for the avoidance of doubt, this means that where a telephone call is answered by a person, the other party, or the other party’s customer(s) shall not make another call to that telephone number). When Leads Company agrees to supply a data set for single use postal marketing, the other party shall only make use of the data set for one mailing.
e) Subject to the commercial terms set out in the agreement and above, the other party is permitted to use the data sets either for advertising the other party’s own products or for advertising the products of a third party. The data sets may not be used other than for the purpose specified in the agreement. It is also not permitted to pass the data on to any third party that is not authorized by Leads Company to use the data according to the agreement. It is strictly forbidden for the other party to resell the data to any third party. It is also strictly forbidden for the other party to use the data for any other product, service or label than agreed upon in the agreement.
f) In the event of any breach by the other party or any of the other party’s customers of the provisions on the use of the data sets as set forth herein, the other party shall be obliged to reimburse to Leads Company any and all damages, losses, costs and expenses incurred by Leads Company resulting directly or indirectly there from. In case the other party or any of the other party’s customers re-sells or misuses the data, the other party shall be obliged to pay to Leads Company under circumstances considered reasonable immediate claimable penalty of €25.000 (in words: twenty five thousand euro’s) per breach, without any notice of default or judicial intervention being required. If the breach continues after Leads Company notified the other party of the breach, a penalty of €1,500 (in words: fifteen hundred euros) will apply for each day that the breach continues after this notification, without any notice of default or judicial intervention being required.
g) Personal Guaranty. The individual signing this agreement (the “Guarantor”) guarantees and agrees to pay any and all indebtedness of any nature incurred by the other Party to Leads Company. This guarantee shall be a continuing, unconditional, and irrevocable guarantee to repay and indemnify such indebtedness of the other party. Guarantor agrees that all rights, remedies, and recourses afforded to Leads Company by reason of this personal guarantee or otherwise are separate and cumulative and may be pursued separately, successively, or concurrently, as occasion therefore shall arise, and are nonexclusive and shall in no way limit or prejudice any other legal or equitable right, remedy, or recourse that Leads Company may have. Guarantor hereby waives notice of default, non-payment, and notice thereof and consents to any modification or renewal of the Agreement hereby guaranteed. This guarantee may be assigned by Leads Company to any person or entity taking assignment of the underlying debt, without notice to Guarantor, and shall be fully enforceable by said assignee. As a condition precedent to the making of a credit extension to the other party, the undersigned officer, director or owner of the other party does hereby personally guaranty to Leads Company the prompt punctual and full payment of all monies now or hereinafter due to Leads Company from the other party. This guaranty is unlimited as to the amount or duration and shall remain in full force and effect notwithstanding any extension, compromise, adjustment, forbearance, waiver, release or discharge of any other party or guarantor or release in whole or in part of any security granted for credit indebtedness or compromise or adjustment thereto, and the undersigned waives all notices thereto. Guarantor further agrees to pay all costs, interest, and reasonable attorney’s fees incurred by Leads Company in collecting any amounts hereby guaranteed. In the event that any of this guarantee shall be construed by a court of competent jurisdiction to be unlawful or unenforceable and if the offending provision can be reformed to effect the clear intention of the parties herein, then, the offending provision shall be so reformed, and the remainder of the guarantee shall remain in full force and effect as written. If the provision cannot be reformed to affect the clear intention of the parties, then, this guarantee shall be deemed to be reformed to exist as now written but without the offending provision.
4 Fees
Leads Company may make interim revisions to the fees of cosponsor and/or co-registration services if, in Leads Company’s opinion, cost increase, either as a result of affiliate costs or other related costs imposed on the service, dependent on unforeseeable deviations in the number of responses on the Participant’s level, interim adjustments of the creatives and/or interim adjustment of specific circumstances. In such event Leads Company shall be entitled, at its sole discretion, to adjust the fee to the actual situation and/or circumstances in good business consultation with the other party.
5 Obligations of Leads Company
Leads Company shall list the other party and/or the other party’s customer(s) in online campaigns, as required for the generation of opt-in data sets. Leads Company shall supply to the other party or, if applicable, the other party’s customer(s) only those data sets generated during online campaigns where the other party and/or the other party’s customer(s) have been mentioned.
6. Obligations of the other party
a) Neither the other party nor any of the other party’s customers shall be permitted to create the impression that the e-mail marketing and/or telephone marketing has been initiated by Leads Company or that Leads Company is in any way involved in or responsible for the marketing.
b) If the other party acts as an agent for its customers, the other party shall agree in writing with its customers that the latter may only use the data sets subject to the restrictions and conditions set out in these general terms and conditions and only for the commercial purpose and term set out in the agreement.
c) For any agreement where the other party is procuring the data sets on behalf of a customer, the other party remains liable for the due payment of all financial obligations under the agreement towards Leads Company. The other party shall remain liable towards Leads Company for any damages suffered in the event the other party’s customer is in default with any payment obligation. In the event the other party fails to 10 timely fulfill its payment obligations to Leads Company, the other party shall upon first request by Leads Company assign to Leads Company any claims the other party may have or acquire on such customer.
7. Variations
Any variations to an Assignment may result in adjustment of the agreed fee and/or the original time schedule and service term. No such variations shall constitute ground for dissolution.
8 Correctness of information provided
All quotations and/or statements as to the services, such as the duration of the service, the scope and technical design of the creatives or other works, shall be made to the best of Leads Company’s knowledge, subject to reasonable deviations. Any minor errors in the creatives or other works prepared by Leads Company, including typographical errors not affecting the editorial contents or the illustrations, graphics, etc. of the creatives, shall not constitute ground for rejection of the project or refusal of the service or of changes to the agreed fee.
9 Force Majeure
In addition to the general provisions about force majeure, force majeure shall include all circumstances beyond Leads Company’s reasonable control which preclude the provision of a service, irrespective of whether such circumstances were foreseeable at the time of the agreement. If the situation of force majeure affects all or the not yet provided part of a service, either by cosponsoring and/or co-registration, and there is no reasonable prospect of commencement or resumption in the short term, Leads Company shall be entitled to cancel the service in writing and the obligations of the parties shall mutually expire without any obligation to pay damages.
10 Liability
In addition to the general provisions about liability, Leads Company shall not be liable for any damage arising during or as a result of the use of the creatives composed by Leads Company and/or for any damage arising while using the designated service.
11 Intellectual Property Rights
In the event that the other party provides any creatives, designs or other instructions in the broadest sense for the purpose of development and/or composition of the service, the other party shall assume full responsibility and liability for non-infringement by the creatives, designs or other instructions of any third-party intellectual property rights or any other rights. The other party shall indemnify Leads Company against any third-party claims in that respect. Leads Company undertakes carefully to keep all business information provided by the other party. Leads Company shall not disclose any such information to third parties for inspection or use, or publish it, unless after prior consultation with the other party. Unless agreed otherwise in writing, Leads Company shall be free to use any information provided by the other party and/or the Participant to Leads Company in the performance of the Assignment. Unless expressly agreed otherwise in writing between the parties, the copyrights and/or other intellectual property rights in the creatives prepared by Leads Company or any other work ensuing from or related to an Assignment or service shall be owned by Leads Company. Without the express prior written consent of Leads Company, the creatives or any other work or any part thereof may not be reproduced and/or disclosed, in any way whatsoever, duplicated or stored in a consultation system accessible to third parties or electronically or otherwise, or alienated, sold or otherwise made available to any third parties.
12 Cancellation
In the event of insufficient Participants, Leads Company shall at all times have the right to cancel the service without being liable for compensation of any damage or costs.