Definitions
1. In these Terms & Conditions, unless the context requires another meaning:
(a) Le Blanc Media the private company with limited liability Le Blanc Media B.V., registered at the Commercial Register of the Dutch Chamber of Commerce under reference number 61821802.
(b) Client is the other contracting party that Le Blanc Media delivers Leads to under the Insertion Order and these Terms & Conditions.
(c) Accepted Lead (Valid Lead) means all Leads that Le Blanc Media provides to the Client other than Leads identified and justified as Invalid Leads.
(d) Agreement means every agreement, including its annexes and Amendments (if any) regarding the purchase, order, or Delivery of Products and/or Services between RC and the Partner, including any annexes, Amendments, and additions thereto. The Agreement does, in any
case, include these General Terms and Conditions, as well as any Order Form, and Insertion Order.
(e) Business Day means any day that is not a Saturday, Sunday or bank holiday in Amsterdam, The Netherlands, and begins at 9 am and concludes at 5 pm on that day.
(f) Claim means a claim, action, proceeding, judgement or demand made or brought by or against a party, however arising and whether present, unascertained, future or contingent.
(g) Consequential Loss means (without limitation), indirect loss, loss of revenue, loss of reputation, loss of profits, loss of actual savings, loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties.
(h) Delivery Method means either comma-separated values (CSV) or application programming interface (API).
(i) Fees means the fees payable by the Client to Le Blanc Media pursuant to article 21 of this Agreement.
(j) Insertion Order means an Order submitted by Le Blanc Media and accepted by the Client pursuant to article 11 of this Agreement.
(k) Invalid Lead means either a hard bounce (recipient email address does not exist, phone number does not exist/disconnected), duplicates (CSV or API with no live de-duplication/duplicate phone number) or the recipient is not the person that was expected.
(l) Lead means a collection of contact details for a person or Client.
(m) Month means the period starting on the first calendar day of the month and ending on the last calendar day of the month.
(n) Terms & Conditions mean these terms and conditions as set out below.
(o) Week means the period from Monday to Sunday.
(p) Year means the period from January to December.
Applicability
2. Applicability of the Terms & Conditions:
These Terms & Conditions shall apply to all Agreements (for the avoidance of doubt, including Insertion Orders (and/or changes or additions thereto)) between the Parties and applies to the whole legal relationship between
the Parties, unless otherwise agreed between the Parties in the Agreement. These Terms & Conditions shall also apply and from an integral part of all quotations and offers made by Le Blanc Media and all acceptance, acknowledgements, and confirmations by Le Blanc Media of any orders by the Client.
3. Amendments:
Any Amendments, deviations to, and additions to, these Terms & Conditions, will only be valid if they have been explicitly agreed in writing by the Parties in a signed written agreement or Insertion Order. In the event that the Insertion Order and/or an Agreement
deviates from the content of these Terms & Conditions, what is contained in the Insertion Order and/or Agreement shall prevail. Verbal announcements, assurances or agreements specifically have no legal effect unless these have been confirmed in writing.
4. Non-applicability of Client’s Terms & Conditions: Any terms and conditions used by Client shall not apply to any Agreement, Insertion Order or the entirety of the legal relationship between parties. Solely these Terms & Conditions as used by Le Blanc Media shall apply.
Le Blanc Media’s Obligations:
5. Le Blanc Media will:
(a) generate the individual data sets via its online campaigns. Le Blanc Media shall collect a general advertising opt-in from a user during the registration process for an online campaign;
(b) only supply those data sets generated during Le Blanc Media‘s online campaigns where potential customers of the Client are identified;al
(c) comply with all applicable laws, specifically privacy laws, in performing the obligations under the Insertion Order and the Terms & Conditions.
Rights of use
6.
The Client will receive the data sets for the type of marketing indicated in the Insertion Order and warrants that the data sets for such type of marketing shall only be used in accordance with this Insertion Order.
7.
The Client is permitted to use the data sets either for advertising the Client’s own products or for advertising the products of a third party. The Client shall not pass the data on to any third party which is not authorized by Le Blanc Media to use the data according these Terms & Conditions. It is strictly forbidden for the Client to re-sell the data to any third party.
8.
The Client shall only use the data for the stated label and communication channel. The Client is allowed to contact the data with a maximum of one (1) time per day. It is strictly forbidden for Client to use the data for any other purpose or label then agreed upon.
9.
The Client must ensure that every Lead has the option to opt-out. The Client shall remove the contact details of the Lead out of the database when requested by the person whose contact details have been collected by Le Blanc Media.
10.
In case of infringement of articles 6, 7, 8 and 9 of these Terms & Conditions, Client will receive an immediate fine with an amount equal to five (5) times the value of the Fees and Expenses of the Leads submitted and yet to be submitted under the agreed upon Insertion Order, with a maximum of €50.000,-
Orders
11.
The Client has the possibility to submit an Order (Insertion Order, IO), including by (but not limited to) letter, email or telephone. The Client shall define every Order with a written confirmation.
12.
Le Blanc Media shall confirm the Order within four (4) Business days of receipt of each Order, whether the Order has been accepted or denied.
13.
Every signed Order, together with these Terms & Conditions shall constitute a service agreement (Agreement) between parties.
14.
If an Order is changing regarding the Cost Per Lead, Le Blanc Media has to approve the new Order within four (4) Business days, for the Order to be considered as valid.
Leads
15. Provision of Leads:
Le Blanc Media shall deliver Leads to the Client in accordance with the Delivery Method and Delivery Schedule specified in any Insertion Order, unless both parties have agreed otherwise in writing.
16. Invalid Leads:
If the Client identifies any Invalid Leads in the Leads provided by Le Blanc Media, the Client shall notify Le Blanc Media with a list of the Invalid Leads and details of the error within the five (5) first Business Days after receiving the leads. The list must contain the Lead ID, email address or phone number and the specific reasons for the scrub. If the Client is unable to provide Le Blanc Media the list accordingly, Le Blanc Media may charge the Client based on the net numbers from Le Blanc Media.
17. Scrub:
The Client shall not reject Leads in the following circumstances: opt-outs, if the Client is unable to successfully contact the data and on the basis of faulty addresses – e.g. postal code, house numbers, phone numbers, e-mail addresses – unless both parties have agreed otherwise in writing. Le Blanc Media does not authorize soft bounces and extra scrub on de-duplication, when the API supports live de-duplication.
18. Data Protection:
The Client undertakes to adopt appropriate technical and organizational security measures having regard to the risks inherent in the processing and the nature of personal data. The Client must ensure that the information contained in the Leads is not subjected to any misuse, resell, interference or loss, unauthorized access, modification or disclosure. The Client may not hold Le Blanc Media responsible if any of the abovementioned instances occur.
19. Control Leads:
Le Blanc Media retains the right to include a small amount of control Leads to assess and verify that Client adheres to the Insertion Order and Terms & Conditions.
20. Suspension of provision of Leads:
If the Client fails to fulfil its obligations, such as non-payment of an invoice or a technical error on the side of Client that is not resolved promptly, Le Blanc Media shall be authorized to suspend the provision of leads without prior notice. Le Blanc Media shall not be liable for any damages arising from the suspension.
Additionally, Le Blanc Media reserves the right to suspend the provision of leads when the percentage of leads being accepted in real-time drops below a certain predetermined percentage in order to perform a quality check on the provision.
Price and Payment
21. Fees:
The Client will pay fees to Le Blanc Media for its provision of Valid Leads under the applicable Insertion Order on the following terms:
(a) the Client will pay Le Blanc Media a fee for each Valid Lead on a per Lead (CPL) basis at the rate or rates agreed between Le Blanc Media and the Client;
(b) The prices stated by Le Blanc Media are exclusive of VAT (value added tax).
(c) Le Blanc Media may invoice the Client based on the number of Valid Leads during the relevant period, multiplied by the CPL specified in the relevant Insertion Order;
(d) the invoices from Le Blanc Media will be payable within fourteen (14) days after the invoice has been sent to Client;
(e) all invoices and payments will be in Euros, or in any other currency defined in the Insertion Order;
(f) payment shall be made into a bank account to be specified by Le Blanc Media in the applicable invoice, and all associated (bank or currency conversion) payment costs shall be fully and independently assumed by the Client;
(g) any dispute regarding the invoice should not delay the payment, unless otherwise agreed in writing signed by both parties;
22.
For any Insertion Order where the Client is procuring the data sets on behalf of a third party, the Client remains liable for the due payment of all financial obligations
towards Le Blanc Media. The Client shall remain liable towards Le Blanc Media for any damages suffered in the event a Client’s third-party client is in default with any payment obligation.
Indemnity
23.
The Client shall indemnify and fully hold harmless Le Blanc Media and its Related Bodies, respective officers, employees, contractors and agents (Indemnified Party), from and against any and all damages, costs, losses, expenses (including, but not limited to, attorneys’ fees), and keep each of them indemnified, against any Claim made against an Indemnified Party or Loss suffered or incurred by an Indemnified Party arising out of or in any way connected with:
(a) any breach of the Insertion Order and these Terms & Conditions by the Client (whether directly or as a result of an act or omission of a Supplier);
(b) any act or omission by the Client or a Supplier in relation to the services, including:
i. defamation;
ii. misleading or deceptive conduct;
iii. infringement of any Intellectual Property Rights or Moral Rights in any person;
iv. contravention of any legislation regulating the privacy of individuals and/or the protection of Personal Information of any person;
v. failure to comply with an applicable law or standard;
vi. breach of the confidentiality obligations imposed on the parties to the extent the loss or damage was caused by the act or omission of the indemnifying party.
Cooperation and Dispute Resolution
24. Relationship:
Nothing in the Insertion Order and these Terms & Conditions shall create or is intended to create a partnership or joint venture between the parties or establish a relationship of principal and agent or any other fiduciary relationship between or among the parties. Neither party has authority to act for, or incur any obligations on behalf of the other, except as provided for in the Insertion Order and these Terms & Conditions.
25. Dispute Resolution:
In the event of a dispute, controversy or claim arising out of or in connection with the Insertion Order and/or the Terms & Conditions, including any question regarding its existence, validity or termination, both parties shall use their best endeavours to resolve their disputes by amicable means.
Liability
26.
To the extent permitted by law, Le Blanc Media is not liable to the Client for damages in contract, tort, or under any statute or regulations in the performance of or incidental to the supply of any services under the Insertion Order and Terms & Conditions.
27.
Le Blanc Media is not liable to the Client (whether in contract, tort (including negligence), pursuant to statute or otherwise) for any loss of production, loss of business, revenue or profit or any other special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen.
28.
In no event shall Le Blanc Media’s aggregate liability under the relevant Insertion Order exceed the fees paid to Le Blanc Media under the Insertion Order.
Miscellaneous
29. Notice:
The Insertion Order and Terms & Conditions may only be amended or modified in writing signed by both parties.
30. Counterparts:
The Insertion Order and Terms & Conditions may be executed and delivered in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
31. Entire Agreement:
The Insertion Order(s) together with these Terms & Conditions, constitute the entire agreement of the parties relating to the subject matter addressed herein and supersedes all prior communications, contracts, or agreements between the parties, whether written or oral, with respect to the subject matter.
32. Severability:
If any term or other provision of these Terms & Conditions is determined to be fully or partially invalid, illegal, void, or unenforceable, all other conditions and provisions of these Terms & Conditions shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith the application of these Terms & Conditions for the specific case so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the greatest extent possible.
33. Waiver:
The failure of Le Blanc Media to insist on strict compliance with any of the terms, covenants and conditions of the Insertion Order and Terms & Conditions shall not be deemed a waiver of such terms, covenants, and conditions, or of any similar right or power hereunder at any subsequent time.
34. Compliance with the law:
Each party shall comply with all applicable laws in performance of their obligations under the Insertion Order and the Terms & Conditions. Both parties warrant to each other that none of their respective obligations or duty owed to any third party, nor infringe the rights of any third party.
35. Governing Law:
The Insertion Order and Terms & Conditions are governed by the laws of the Netherlands. The parties submit to the exclusive jurisdiction of the courts in Amsterdam, The Netherlands, and of all the courts competent to hear appeals from those courts. The parties will not object to the exercise of jurisdiction by those courts on any basis.
36. Confidentiality:
Both parties acknowledge and agree that the terms of the Insertion Order and Terms & Conditions will remain confidential to the parties and their directors, internal accountants and advisors, save and insofar as disclosure may be required by law or for the purpose of enforcing the terms of this Agreement. Each party undertakes that it shall not at any time for a period of two (2) years after signing of the last Insertion Order, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, nor any of provisions of the Terms & Conditions and Insertion Order(s). Both parties can be held liable when in breach of the confidentiality with an immediate fine of €50.000,- including the potential cost of the legal fees that might occur due to the breach of confidentiality