Terms & Conditions

General Terms and Conditions leadstreet BV

General Terms and Conditions leadstreet BV

leadstreet BV, a limited liability company organised and existing under the laws of Belgium, with registered office at 9000 Ghent, Dok-Noord 5/1 and registered in the Crossroads Bank for Enterprises under number 0556.843.742 (hereinafter “leadstreet”), is a software firm and partner of HubSpot, active in the design, development and operation of software and the thereto related services, including, among other things, the provision of licenses to the software product ‘Pocket Knife’, an Add On to the ‘HubSpot Platform’.

The customer may be any legal entity which enters into a contractual relationship of whichever nature with leadstreet in connection with his or its trading, business, artisanal or professional activity (hereinafter the “Customer”).

Article 1 – Definitions

1.1 Except to the extent expressly provided otherwise, all words and definitions defined in these Terms and Conditions shall bear the following meaning:

“Add On” A software extension that adds extra features to the software. It may extend certain functions within the software, add new items to the software’s interface, or give the software additional capabilities. ‘Pocket Knife’ is an Add On to the ‘HubSpot Platform’.

“Affiliate” An entity that Controls, is Controlled by, or is under common Control with the relevant entity, within the meaning of Article 1:20 BCAC.

“Agreement” Any agreement, quotation or other document between a Customer and leadstreet concerning the delivery of Products, including the Online Form and these Terms and Conditions.

“BCAC”  The Belgian Companies and Associations Code, as amended from time to time.

“Business Day” Any weekday other than a bank or public holiday in Belgium.

“Confidential Information” Any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one party (“Disclosing Party”) to the other party (“Receiving Party”) prior to or during the term of this Agreement (or to which the Receiving Party otherwise gains access as a result of this Agreement) relating to the business of the Disclosing Party, including without limitation business plans and models, financial information, market research, Customer and supplier information, proprietary software and methods, and information concerning proprietary inventions and technologies.

“Control” The legal power to control (directly or indirectly), as defined in Article 1:14 BCAC.

“Customer Data” All data, including personal data and other information and/or designs, provided by the Customer to leadstreet for the the delivery of the Products, and which may be received, stored, or transmitted through the Product. The processing of personal data shall be carried out in accordance with the provisions of a data processing agreement.

“Defect” A defect, error or bug in the Product having a material adverse effect on the operation, functionality or performance of the Product, but excluding any defect, error or bug caused by or arising as a result of: (i) any act or omission of the Customer or any person authorised by the Customer to use the Product; (ii) any use of the Product contrary to the Documentation or any improper use of the Product, whether by the Customer or by any person authorised by the Customer; (iii) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or (iv) an incompatibility between the Product and any other system, network, application, program, hardware or software not specified as compatible in the Documentation.

“Documentation” The documentation for the Product produced by leadstreet and delivered or made available by leadstreet to the Customer via the Website.

“Fees” All fees, related to the Products provided by leadstreet as agreed upon in the Online Form.

“Goods” Any goods that leadstreet provides to the Customer under an Agreement.

“Incident” Any deviation of the operation of the Product from the (expected) standard as provided for in the Online Form and any related Documentation.

“Intellectual Property Rights” All intellectual, industrial and other proprietary rights, including (without limitation) patent rights, trademarks, trade names and logos, designs and models, copyrights, rights in databases, software programs, manuals and other documentation, proprietary rights in know-how (including trade secrets), and all elements of text, images, photographs, multimedia and audiovisual material, and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever.

“Maintenance and Support Services” The general maintenance of the Product and general support services.

“Online Form” The document signed between the Customer and leadstreet, detailing the selected package of the (Software) Product (basic/professional/enterprise) and the Customer-specific terms, incorporating these Terms and Conditions.

“Products” Any Goods, Services and/or products that leadstreet provides to the Customer under an Agreement including, among other things, the Software Product.

“Services” Any services that leadstreet provides to the Customer under an Agreement.

“Software Product” The web-based application ‘Pocket Knife’, as specified in the Documentation, will be made available by leadstreet to the Customer as a service via the internet in accordance with this Agreement.

“System Requirements” The minimum hardware and software requirements, including devices and operating system versions to run the Software Product, as listed on the Website and in the Documentation, or notified otherwise by leadstreet to the Customer.

“Terms and Conditions” The general terms and conditions of leadstreet as set out herein that apply to all deliveries of Products and/or Agreements related thereto, provided by leadstreet.

“Update” A release of the Product which corrects Defects or otherwise amends the Product, but which does not constitute an Upgrade; an Update will be indicated by the software version going from, for instance, “x.1 to x.2”. Updates also include all, but are not limited to, patches, as provided by leadstreet at its sole discretion.

“Upgrade” A new version of the Product, usually consisting of several bundled improvements, adjustments and reviews. An Upgrade will be indicated by the software version going, for instance, from “1.x.x to 2.0”, as provided by leadstreet at its sole discretion.

“Website” The website of leadstreet located at pocketknife.leadstreet.be and/or www.leadstreet.be/nl/.

1.2 The annexes to an Agreement form an integral part thereof (the “Annexes”). Any reference to the Agreement shall be deemed to include a reference to the Annexes, and vice versa. In the event of a conflict between the provisions of the Agreement, the Annexes and/or these Terms and Conditions, the following order of precedence shall apply: (1) the Agreement; (2) the Annexes; and (3) the Terms and Conditions, unless expressly agreed otherwise in the Agreement (whereby the higher-ranking document shall prevail over the lower-ranking one). In the event of a conflict between provisions of contractual documents of the same rank or between successive versions of the same contractual document, the most recent document shall prevail.

1.3 The headings in the Agreement are for informational purposes only and in no way reflect the intention of the Parties. They shall not be taken into account in the interpretation of the Agreement.

1.4 References to the singular shall also include the plural and vice versa, where the context so requires.

1.5 All deadlines stated in the Agreement shall be calculated from midnight to midnight. They shall begin on the day following the date on which the event triggering the deadline occurred. The due date shall be included in the period. If the due date falls on a Saturday, Sunday or official public holiday in Belgium, it shall be extended to the next working day. Unless otherwise provided, all deadlines shall be calculated in calendar days. Any deadlines expressed in months (or years) shall be calculated from the day of the month (or year) on which the triggering event occurred until the day before the same calendar day in the subsequent month(s) (or year(s)).

1.6 Unless expressly stated otherwise, any reference to a fixed time of day shall refer to Brussels time.

Article 2 – Application

2.1 The conclusion of an Agreement with leadstreet shall entail the full and unconditional acceptance of these Terms and Conditions. These Terms and Conditions apply to the exclusion of any other general or specific terms and conditions communicated by the Customer at any time, even if those terms and conditions state that they alone shall apply. Deviations from these Terms and Conditions shall only be valid if expressly and in writing accepted by leadstreet. Unless expressly agreed otherwise, any such deviation shall apply only to the specific quotation, Agreement, assignment, or delivery for which it was granted. In the event of a conflict between these Terms and Conditions and any specific conditions agreed in writing with the Customer, the latter shall prevail.

2.2 leadstreet reserves the right to revise these general Terms and Conditions at any time in accordance with economic and legal needs. The revised terms and conditions shall be communicated to the Customer and shall automatically enter into force after a term of ten (10) Business Days. The Customer may terminate the Agreement with leadstreet, without payment of any compensation and with immediate effect, provided that an e-mail is sent to leadstreet within ten (10) Business Days after the revised general terms and conditions have been notified to the Customer.

2.3 All obligations of leadstreet under these Terms and Conditions constitute obligations of means, not obligations of result.

Article 3 – Conclusion of the Agreement

3.1 All quotations made by leadstreet are non-binding, unless explicitly stated otherwise in writing. A quotation shall only be valid if it specifies a validity period and, in any case, shall remain valid for a maximum of two (2) weeks. leadstreet shall only be bound by a quotation after written confirmation from leadstreet or upon sending an invoice.

3.2 A quotation issued by leadstreet, together with these Terms and Conditions, constitutes a binding Agreement between the Customer and leadstreet upon (electronic) acceptance of the Online Form by the Customer, incorporating these Terms and Conditions.

3.3 Agreements may also be concluded through the mere performance of the assignment by leadstreet. In such cases, the invoice shall serve as proof of the concluded Agreement, which is subject to these Terms and Conditions.

3.4 leadstreet reserves the right, at all times and without providing any reason, to refuse assignments and/or orders.

3.5 The Customer may not derive any rights from previous Agreements with leadstreet, nor from any repeated or recurring nature thereof.

3.6 The Terms and Conditions contain the general contractual framework for the Products that may be provided by leadstreet to the Customer with regard to the Product, consisting of:

(i) a right to use the Product (the “Product License”); and

(ii) a right to receive Services in relation to the Product.

3.7 Each Online Form mentions the specific terms agreed upon with regard to the relevant subject and applies in addition to these Terms and Conditions. In the event of a conflict or a conflict of interpretation between these Terms and Conditions and an Online Form, the provisions of the Online Form will prevail.

Article 4 Performance of the Agreement

4.1 leadstreet shall perform the Agreements to the best of its ability and in accordance with the standards of good professional practice.

4.2 leadstreet and the Customer may, if desired, agree on service levels in a separate Service Level Agreement (“SLA”). The Customer shall at all times inform leadstreet of all circumstances that may affect the services or their availability. If service levels are agreed, availability shall be measured without taking into account any planned downtime for maintenance or service, or any circumstances beyond leadstreet’s reasonable control.

4.3 leadstreet may lawfully assume that anyone communicating with leadstreet on behalf of the Customer is authorised to act in the name of the Customer.

4.4 The Customer shall ensure that all information which leadstreet indicates is necessary, or which the Customer should reasonably understand to be necessary for the performance of an Agreement, is provided to leadstreet in a timely manner. If the necessary information is not provided in time, leadstreet shall be entitled to suspend the performance of the Agreement and/or charge the Customer for the additional costs resulting from the delay at leadstreet’s standard fees.

4.5 leadstreet shall not be liable for any damage of any kind arising from the provision of incorrect and/or incomplete information by the Customer.

Article 5 Delivery deadlines

5.1 All deadlines are indicative only. This means that any delivery date provided is merely an estimate and shall not be binding on leadstreet. leadstreet shall use its best efforts to comply with the indicated timelines. Provided that leadstreet offers reasonable justification, any delay in (the) delivery shall not give rise to any liability on the part of leadstreet, nor to a right to terminate the Agreement or to claim any compensation in favour of the Customer, except in cases of intentional delay caused by leadstreet.

5.2 If the parties have explicitly agreed upon a binding delivery deadline in writing, such deadline shall be extended in the event that the Customer fails to timely provide the necessary information or documents, places additional orders, or in the event of any other circumstance not attributable to leadstreet that makes timely delivery impossible.

Article 6 Additional work

6.1 leadstreet shall not perform any additional work without prior notice to the Customer. The Customer shall receive a new price proposal indicating either a fixed additional amount or may opt to have the additional work carried out on a time and materials basis at a pre-agreed hourly rate.

6.2 During the execution of the assignment, the Customer may propose modifications, additions, or corrections to the assignment. Any such changes requested by the Customer may lead to a price adjustment, which shall be communicated in accordance with Article 10.3 of these Terms and Conditions.

Article 7 Complaints

7.1 The Products shall be deemed accepted ten (10) Business Days after the delivery date—which corresponds to the invoice date for the delivered Services— or after discovering a hidden effect unless the Customer has notified leadstreet of any defects within this period. Acceptance is final and takes place only once. Any defects must be reported to leadstreet by registered mail, sent no later than ten (10) Business Days after the delivery date. If the complaint is admissible and well-founded, the responsibility is limited to the price of the delivered Products. No other damage to the buyer or a third party will be compensated.

7.2 All complaints, including comments or objections concerning the invoice and/or the invoicing terms stated therein, must be communicated to leadstreet in accordance with Article 10 of these Terms and Conditions.

Article 8 Subcontracting and Third Parties

8.1 The Customer acknowledges and accepts that leadstreet may engage subcontractors of its own choosing to perform its obligations under the Agreement.

8.2 If leadstreet is not free to choose its subcontractor, or if during the course of the work it becomes apparent that the Customer is communicating directly with the subcontractor, leadstreet shall no longer be liable for any interventions by such third party. In such case, any further invoicing by leadstreet shall be regarded solely as a technical administrative action. The Customer may not make the fulfilment of its obligations towards leadstreet dependent on any documentation, data, or calculations relating to the subcontractor's contract, unless expressly agreed otherwise.

8.3 Without prejudice to any other provision of these Terms and Conditions, leadstreet shall never be held liable for any failure by its subcontractors or suppliers beyond the extent to which those subcontractors or suppliers are liable towards leadstreet, and in any case not beyond the warranty or indemnity actually granted to leadstreet by those parties.

8.4 The Customer agrees not to enter into any direct or indirect relationship (other than through leadstreet) with any of leadstreet’s subcontractors or suppliers with whom the Customer became acquainted during the execution of the relevant assignment, for a period lasting throughout the term of the Agreement and for six (6) months thereafter. This restriction applies insofar as such direct relationship would relate to activities falling within the scope of leadstreet’s business. In the event of a breach of this Article by the Customer, the Customer shall be liable to pay leadstreet a fixed compensation of fifty thousand euros (EUR 50,000.00) per breach, and an additional compensation of five hundred euros (EUR 500.00) for each day the breach continues, without prejudice to leadstreet’s right to claim compensation for any higher proven and actual damages suffered.

Article 9 – Setup, installation and testing of the Product

9.1 The Customer is solely responsible for the installation and testing of the Products supplied by leadstreet. Upon the Customer’s request and with leadstreet’s approval, leadstreet will carry out the installation at the Fees applicable at that time.

9.2 The setup of the Software Product shall be performed by the Customer in accordance with the instructions provided on the Website.

9.3 Any issues that arise during the setup of the Product may be reported to leadstreet via the support form on the Website.

9.4 The Customer acknowledges and agrees that leadstreet will set up, monitor and maintain the infrastructure with third party service providers, such as, for example, Google Cloud.

Article 10 – Fees

10.1 The Fees for the Products and the Product License provided under these Terms and Conditions are listed in the order form and/or the price list and fall due on the agreed payment milestones.

10.2 The quotations and price offers provided by leadstreet are based on the current values of wages, materials (including energy prices), and exchange rates. Should these values change, leadstreet reserves the right to adjust its prices accordingly. leadstreet shall inform the Customer in advance of any intended price adjustment. Any price adjustment will become applicable ten (10) Business Days after notification by leadstreet.

10.3 All Fees set out in an Agreement are based on leadstreet’s estimates of the quantity and unit price of labour hours and other resources required to deliver the Products under the Agreement. If the Customer at any time requests a change to the scope of the Products that affects the quantity or unit price of the required resources, leadstreet may adjust the Fees accordingly (cf. Article 6.2 of these Terms and Conditions). If a requested change or addition to the Agreement has financial and/or qualitative consequences, leadstreet shall inform the Customer in advance. If such a change has substantial consequences, leadstreet reserves the right to suspend or discontinue performance under the Agreement until mutual agreement is reached on the impact of the change. leadstreet may rely on the instructions of any person within the Customer’s organisation who is involved in the execution of the Agreement.

10.4 leadstreet will not charge any additional fees for Updates or Upgrades supplied by leadstreet for the Product during the term. The cost for the use of such Upgrades and Updates is included in the Fees.

10.5 The Customer expressly agrees that leadstreet is entitled, on a yearly basis, to proportionally adjust (in plus or in minus) the agreed Fees on the basis of the following formula:

p = p0 [a(S/S0) + b], whereby:

- p   = adjusted fee

- p0 = basic fee (as set out on the date of this Agreement)

- S   = the Agoria Digital-reference wage costs of the month preceding the adjustment of the fee

- S0 = the Agoria Digital-reference wage costs of the month preceding the date of this Agreement

- a   = 80%

- b   = 20%

If applicable, leadstreet shall inform the Customer of the fee adjustment in writing. The fee adjustment will become applicable ten (10) Business Days after notification by leadstreet.

Article 11 – Payment terms and taxes

11.1 Unless otherwise agreed, all invoices issued by leadstreet are payable within thirty (30) calendar days from the invoice date and at leadstreet’s registered office, without any deduction for taxes or other amounts that the Customer may wish to offset against amounts owed to leadstreet, for any reason whatsoever.

By way of derogation from the above, and in relation to Services provided by leadstreet concerning the Software Product, an advance payment shall always be required, unless expressly agreed otherwise, prior to the commencement of the Initial Period (as defined in Article 19.1) and prior to the start of any subsequent periods of the Agreement.

11.2 Any payments made by the Customer to leadstreet are non-refundable under any circumstances.

11.3 In case of any overdue payment, the relating invoice will bear interest at the rate of 1% per month. Each month commenced shall be considered a full month. In addition, the Customer shall owe leadstreet a contractual indemnity set at 10% of the total amount invoiced, with a minimum of one hundred fifty euros (EUR 150.00). In addition, an administrative fee of forty euros (EUR 40.00) shall be charged for debt collection costs, if applicable. The interest and the contractual indemnity are due by operation of law and without prior notice of default on the due date.

11.4 In the event of late payment by the Customer as described in Article 11.3 of these Terms and Conditions, all other outstanding, but not yet due, claims of leadstreet or any Affiliate of leadstreet shall become immediately due and payable by operation of law and without prior notice. If leadstreet holds multiple claims against the Customer and the Customer makes a partial payment, such payment shall always be allocated first to interest and costs, and then to the principal of any due invoices. leadstreet shall have the discretionary right to determine which specific claim the payment will be applied to, even if the Customer indicates otherwise.

11.5 In addition, in case of any overdue payment of any invoice (or any other amount owed to leadstreet or to any Affiliates of leadstreet), in whole or in party, by the Customer or its Affiliates:

(i) leadstreet shall have the right, automatically and without prior notice, to suspend or cancel the provision of further Services and downgrade the package to the ‘basic’ package of the (Software) Product, without prejudice to its right to compensation, if any amount due to be paid by the Customer is overdue and leadstreet has given to the Customer at least ten (10) Business Days' written notice following the amount becoming overdue of its intention to suspend the Services on this basis. In such case, leadstreet shall not be obliged to deliver or transfer any Products created for the Customer; and

(ii) leadstreet can pursue any other remedies available under applicable law.

11.6 Unless explicitly agreed otherwise, all amounts are in EUR and net of taxes. If value-added tax or any similar tax is applicable to these Fees, the Customer shall pay such tax in addition to the quoted Fees. All taxes which are or may be levied in the future by a government authority in respect of the Products provided by leadstreet under these Terms and Conditions, will be borne by the Customer.

11.7 Customer agrees to send documentary evidence to leadstreet that the Customer has paid all local taxes. This evidence will be sent to leadstreet within twenty (20) Business Days after leadstreet’s written request.

11.8 Any discounts granted to the Customer and any other amounts owed by leadstreet to the Customer (or to any Affiliate of the Customer) may, at leadstreet’s sole discretion, be offset against amounts owed by the Customer to leadstreet (or to any Affiliate of leadstreet). All amounts owed by the Customer to leadstreet must be paid without any right of set-off.

11.9 Any dispute regarding an invoice must, in order to be admissible, be submitted by registered mail and in detail within ten (10) Business Days from the date of receipt of the invoice. Failing such notification, the invoice shall be deemed accepted. The filing of a dispute, regardless of the grounds, does not relieve the Customer of its payment obligations, not even partially.

11.10 If leadstreet’s confidence in the Customer’s creditworthiness is shaken by acts of judicial enforcement against the Customer and/or other identifiable events that call into question and/or make it impossible to trust the Customer’s performance of the commitments entered into or in the event of non-payment of an invoice, leadstreet reserves the right to demand guarantees from the Customer and/or suspend any remaining deliveries, without formality and subject to all of leadstreet’s rights.

Article 12 – Right of use

12.1 Grant of license

leadstreet grants to the Customer a worldwide, non-exclusive, revocable, non-sublicensable and non-transferable right to use the (Software) Product in accordance with these Terms and Conditions and the Documentation and for the Customer's own internal purposes and business operations exclusively. The license granted herein shall be automatically revoked upon termination of the Agreement.

12.2 Customer restrictions

The Customer may not:

(i) copy, translate, modify, adapt, decompile, disassemble, reverse engineer the Product in whole or in part, except as and to the extent specifically authorised by applicable law;

(ii) create derivative works on the basis of the Product, modify the design of the databases that underlie the Product;

(iii) transfer the Product as a whole or in parts to the IT-environment of third parties without leadstreet’s written consent; and

(iv) at any time deposit as security, assign, sub-license, sublease, sub-host, sell or give away control of any portion of the Product, without leadstreet’s written consent.

12.3 Title and ownership

Nothing in these Terms and Conditions will create the transfer of title or (Intellectual) Property Rights to the Product and related objects, Documentation and related assets by leadstreet to the Customer.

12.4 Protection and modifications, Updates and Upgrades

leadstreet is authorised to take technical measures to protect the Product against unauthorised use and/or copying.

leadstreet is authorised to replace or modify the source code of the Product in order to adjust it to the evolution of the Software Product.

leadstreet is authorised to apply (and push) Updates and Upgrades to the Product, without being obliged to do so.

Article 13 – Customer obligations

13.1 The Customer shall duly fulfil all of its contractual obligations towards leadstreet and shall provide leadstreet with the accurate and complete information necessary to allow leadstreet to determine the pricing in accordance with the actual cost price of the Products and to perform the Agreement.

13.2 In order to facilitate the proper delivery of Products under these Terms and Conditions, the Customer shall:

(i) be solely responsibility for ensuring third party hardware and software versions under its control are aligned with the minimum System Requirements;

(ii) fully cooperate with leadstreet in diagnosing Incidents, promptly reporting any such Incidents to leadstreet, and providing documented, reproducible examples via the support form on the Website (https://pocketknife.leadstreet.be/en/support) (https://www.leadstreet.be); and

(iii) not request, permit or authorise any third party other than leadstreet to perform any Services in relation to the Product, unless expressly authorised in writing or instructed by leadstreet.

13.3 The Customer must not use the Product in any way that is unlawful, illegal, or fraudulent.

13.4 The Customer must not use the Product in any way that causes, or could reasonably be expected to cause, damage to the Product, or that could negatively impact the reputation, goodwill or public perception of leadstreet.

Article 14 – Maintenance and Support Services

14.1 leadstreet shall provide the Maintenance and Support Services on a best effort basis during the term of the Agreement as stated in the Online Form.

14.2 leadstreet shall maintain the availability of the Product to a sufficient level during the term of the Agreement as stated in the Online Form.

14.3 The Customer agrees that all contacts in relation to the Product and these Terms and Conditions will be communicated through e-mail via the support form or the live chat on the Website. Only when expressly agreed with the Customer in the Online Form, leadstreet also provides telephone support.

14.4 leadstreet reserves the right to limit its Maintenance and Support Services to the most recent versions of operating systems only, typically supporting the latest two stable major operating system versions.

Article 15 – Excluded matters

15.1 leadstreet will have no obligation to provide Services for:

(i) the Product that has been modified, repaired altered or merged with unauthorised software by the Customer or third parties;

(ii) use of the Product other than in accordance with the Documentation and/or for a purpose for which it was not designed; or

(iii) Customer’s failure to implement leadstreet’s instructions in respect of solutions to Defects previously advised by leadstreet.

15.2 Any service which is provided by leadstreet as a result of any of the foregoing will be considered as additional Services out of scope and charged in accordance with the then current rates of leadstreet.

Article 16 – Suspension

If any data or other input required from the Customer for the delivery of the Products is unavailable, not provided in a timely manner, or if the Customer fails to meet its contractual obligations in any other respect, leadstreet shall have the right to suspend the delivery of Products under these Terms and Conditions and/or to charge the Customer for any resulting additional costs, based on leadstreet’s then-current rates.

Article 17 – Force majeure

17.1 In the event of a force majeure, leadstreet and the Customer are not responsible for defective and/or delayed performance of all or part of their obligations under or in relation to an Agreement. If the performance of the Agreement cannot take place due to a force majeure event, the failing party shall inform the other party within a period of five (5) Business Days after the commencement of the force majeure event. If leadstreet relies on third parties for the performance of its obligations, the provisions set out in this Article shall equally apply in the event that the force majeure occurs at the level of such third parties.

17.2 For the purposes of these Terms and Conditions, as well as any other Agreement, quotation, or document to which these Terms and Conditions apply, a force majeure event refers to any circumstance beyond the reasonable control of a party that prevents that party from fulfilling its obligations under the Agreement, whether temporarily or permanently, even if such circumstance was foreseeable. Without limitation, force majeure events include, but are not limited to: exhaustion of resources, delays or non-deliveries by a party’s suppliers, machine failure, material breakdown, strikes, lockouts, shortage of personnel, explosion, fire, theft, civil unrest, riots, uprising, revolution, rebellion, acts of terrorism, war, civil war, mobilisation, invasion, occupation, hostilities, government-related decisions and interventions (including current or future import and export restrictions or regulations affecting goods and services that may hinder leadstreet in the delivery of Products), acts of God, natural disasters (including storm, heavy gusts of wind, flooding, lightning, and dense fog), epidemics, transport disruptions, measures imposed by public authorities, failures in electricity, computer systems, internet or telecommunications services (including disruptions in service by internet providers), negligence or failure by suppliers or third parties, and any other circumstance as provided under Article 5.226 of the Belgian Civil Code.

17.3 In case the force majeure event causes an interruption in performance, the term of delivery and the performance of obligations of the party concerned shall in any event be suspended for the duration of the force majeure, increased by the time it takes to restart the delivery of the Products. The parties will use best efforts to limit the consequences of the force majeure event.

17.4 If a Product cannot be delivered due to force majeure, leadstreet reserves the right to terminate the agreement without compensation.

17.5 If the force majeure event continues for a period longer than sixty (60) Business Days, either party shall have the right to unilaterally terminate the Agreement without court intervention and without any obligation to pay damages or compensation to the other party. In such case, leadstreet shall be released from all further obligations under the Agreement without any liability towards the Customer, and the Customer shall have no right to claim performance or compensation of any kind. If leadstreet has, prior to or during the suspension or termination of the Agreement, partially fulfilled its obligations, the Customer shall owe leadstreet a pro rata portion of the total price, corresponding to the Products already delivered. These partial deliveries shall be deemed to have been performed under the Agreement and shall remain payable by the Customer.

Article 18 – Hardship

18.1 Should exceptional circumstances beyond leadstreet’s reasonable control significantly alter the respective rights and obligations of leadstreet and the Customer to the detriment of leadstreet, by causing an excessive increase in leadstreet’s contractual obligations (including, but not limited to, increases in the cost of labour, energy, and/or materials), leadstreet may request that the parties enter into good faith negotiations to adjust the terms of the Agreement. The objective of such adjustment shall be to restore the original balance of rights and obligations, with due consideration for the legitimate interests of both parties.

18.2 If no mutual agreement is reached within twenty (20) Business Days from the date of leadstreet’s request, leadstreet shall have the right, at its sole discretion, to terminate the Agreement by means of a registered letter, without incurring any liability. In the event that leadstreet has partially performed its obligations prior to termination, the Customer shall be liable to pay a pro rata portion of the total contract price corresponding to the Products already delivered.

Article 19 – Term and termination

19.1 Term

This Agreement shall come into force upon the effective date and will remain in force and effect for one month or one year (or as otherwise) as stated in the Online Form (the “Initial Period”). Subsequently the Initial Period will be tacitly renewed for subsequent periods of the same term unless the Agreement is terminated by one of the parties upon written notice to the other party before the end of the then current period.

19.2 Termination for Cause

Despite the above, leadstreet shall have, without prejudice to their other rights or remedies, the right to terminate any Agreement to which these Terms and Conditions apply, in whole or in part, at any time and with immediate effect by written notice (including by e-mail) to the Customer, without court intervention, notice period, or prior notice of default, in any of the following circumstances (“Termination for Cause”):

(i) the Customer is in breach of any of its obligations under the Agreement (or under any other agreement with leadstreet or its Affiliates), and such breach is either irremediable or has not been remedied within twenty (20) Business Days following a written notice of default from leadstreet;

(ii) the Customer undergoes a change of control within the meaning of Articles 1:14–1:18 of the Belgian Code of Companies and Associations; or

(iii) the Customer is declared bankrupt, is placed in liquidation, files for judicial reorganisation or suspension of payments, or is subjected to seizure, receivership, administration, or any other legal or judicial process resulting in the loss of control over all or part of its assets,

Such immediate termination of the Agreement shall automatically cause the immediate termination of the Online Form.

In any of the above cases, leadstreet is also entitled to suspend the performance of its obligations, in whole or in part, without incurring any liability or prejudice to any other rights or remedies it may have.

19.3 Early termination and compensation

Upon early termination of the Agreement:

(i) by leadstreet due to the Customer’s breach; or

(ii) by the Customer in breach of the Agreement,

leadstreet shall be entitled to claim compensation for damages in an amount proportionate to the remaining unpaid Fees, without prejudice to its right to claim additional damages, including (but not limited to) loss of profit.

19.4 Consequences of expiry or termination

Upon expiry or termination of the Agreement:

(i) the Customer’s right to receive and use the Products under the Agreement shall cease automatically;

(ii) each party will immediately return to the other all property and materials belonging to that party, including all Confidential Information;

(iii) by way of derogation from Article 11.1 of the Agreement, all outstanding amounts owed to leadstreet under the Agreement, whether already invoiced or not, shall by operation of law and without prior notice of default, become immediately due and payable; and

(iv) the Customer shall, within twenty-four (24) hours of receiving a written request from leadstreet, return all goods provided by or belonging to leadstreet.

19.5 Survival and accrued rights

Termination of the Agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect the entry into force or continuantion of any provision of these Terms and Conditions, which, expressly or by implication, is intended to survive termination.

Article 20 – Warranties

20.1 Subject to the limitations and exclusions set out in Article 20.3, leadstreet warrants to the Customer that:

(a) it has the legal right and authority to enter into this Agreement and to perform its obligations hereunder;

(b) it shall make best efforts to comply with all applicable legal and regulatory requirements relating to the performance of its obligations under this Agreement;

(c) the Product will, in all material respects, conform to specifications described in the Documentation and/or in the applicable license agreement; and

(d) the Product will incorporate security features consistent with good industry practice.

20.2 The warranty and liability for Goods supplied by leadstreet but originating from third parties is strictly limited to the warranty granted by the third-party supplier, as set out in the relevant license terms. A copy of such license terms shall be made available to the Customer upon simple request prior to the purchase of such Products.

20.3 leadstreet provides no other warranty. In particular, leadstreet provides no warranties of any kind in relation to:

(a) the merchantability or fitness of the Product for a particular purpose;

(b) the compatibility of the Product with any software, systems or hardware of the Customer and/or any third-party;

(c) the Customer’s expectations that the Product will meet all of its individual, specific requirements or be fully customisable to such needs; or

(d) the uninterrupted or error-free use of the Product by the Customer, regardless of whether such warranty would otherwise be imposed by contract, statute, course of dealing, custom and usage, or otherwise.

20.4 The Customer warrants to leadstreet that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

20.5 All warranties and representations made by the parties regarding the subject matter of this Agreement are expressly set forth herein. To the fullest extent permitted by applicable law, no other warranties or representations shall be implied into this Agreement or any related agreement, whether by statute, course of dealing, custom and usage, or otherwise.

20.6 The Customer acknowledges that:

(a) the Software Product is an Add On to the ‘Hubspot Platform’ and cannot function without a valid and active license of the Customer on the ‘Hubspot Platform’;

(b) complex software is never wholly free from defects, errors or bugs, and subject to the terms of this Agreement, leadstreet does not warrant that the Product will be wholly free from Defects;

(c) complex software is never wholly free from security vulnerabilities, and subject to the terms of this Agreement, leadstreet does not warrant that the Product will be entirely secure; and

(d) the Software Product is designed to be compatible only with that software and those systems specified as compatible in the Documentation, and leadstreet does not warrant or represent that the Software Product will be compatible with any other software or systems.

Article 21 – Limitations and exclusions of liability

21.1 Nothing in this Agreement shall:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation; or

(c) limit or exclude any liabilities in any way that is not permitted under applicable law.

21.2 leadstreet shall only be liable for damages, which are proven, direct, and the immediate result of a proven contractual fault by leadstreet. Under no circumstances shall leadstreet be liable for:

(a) indirect damages of any kind (including, but not limited to: legal fees, expert costs, loss of revenue or income, loss of clientele, loss of profits, loss of use or production, loss of contracts, expected savings, business opportunities or goodwill, reputational harm, loss or corruption of data, or the cost of obtaining substitute goods or services);

(b) damages claimed by third parties, except where stated otherwise in the Terms and Conditions;

(c) damages caused by hardware, software, or other products and/or services provided by parties other than leadstreet; or

(d) defects or damages resulting from the poor installation, insufficient maintenance, unprofessional repair, or unauthorised modification of the Product by the Customer or any third party.

21.3 leadstreet shall be released from any liability in the following situations:

(a) force majeure, as defined in Article 17;

(b) negligence (including gross negligence or wilful misconduct) on the part of the Customer or third parties; and/or

(c) incorrect, incomplete or late delivery of data or instructions by the Customer or third parties.

In the event of negligence by suppliers or subcontractors of leadstreet, leadstreet will make reasonable efforts to limit the consequences and to offer the Customer an appropriate alternative solution.

21.4 Any liability of leadstreet is subject to the condition that the Customer notifies leadstreet in writing of the facts giving rise to the damage as soon as reasonably possible after discovery and, in any case, no later than twenty (20) Business Days after such discovery. The notice must include the factual and legal grounds of the claim, in reasonable detail, and a fair estimate of the damages claimed. If the Customer fails to comply with the requirements of this Article 21.4, it shall no longer be entitled to bring any claim against leadstreet in relation to the relevant facts.

21.5 The Customer shall take all reasonable steps to limit the effect of any negligence or breach by leadstreet (if applicable) and to minimise any recoverable losses or costs.

21.6 If leadstreet is found liable in accordance with this Agreement, its total aggregate liability shall in any case be limited to the lowest of the following amounts:

(a) the total amounts already invoiced and paid under this Agreement by the Customer to leadstreet in the twelve (12) months prior to the event giving rise to liability;

(b) the amount actually covered and paid out by leadstreet’s professional liability insurer; or

(c) twenty-five thousand euros (EUR 25,000.00) with a maximum liability of ten thousand euros (EUR 10,000) per event, fact or matter giving rise to liability.

This limitation is cumulative and applies to all claims under the Agreement, including but not limited to claims for contractual breach and/or negligence.

21.7 Nothing in these Terms and Conditions shall limit leadstreet’s right to recover any amounts from the Customer in cases where the Customer has contributed to the occurrence of the damage through its own negligence or breach of the Agreement. This includes, without limitation, leadstreet’s right to claim unpaid invoices, indemnification for damages, and any other related losses caused by such breach or negligence.

21.8 The Customer acknowledges and agrees that neither the Customer nor any upstream party in the contractual chain (such as a client or principal of the Customer) shall be entitled to bring direct (extracontractual) claims for compensation arising from any fault in connection with the performance of the Agreement against any auxiliary person of leadstreet (such as directors, subcontractors, employees, or assistants), nor against any auxiliary person of those auxiliary persons. Only a contractual claim by the Customer against leadstreet shall be possible.

Article 22 – Indemnity for breach of third party rights

22.1 Without prejudice to Article 21 of these Terms and Conditions, leadstreet will indemnify the Customer against any direct damages which may be awarded against it by an enforceable court decision, as a result of the Product being held to infringe an Intellectual Property Right of a third party, but only if:

(i) the Customer notifies leadstreet promptly by e-mail, immediately confirmed by registered mail, upon learning that a claim might be asserted;

(ii) leadstreet has sole control over the defence of the claim and of any negotiations for its settlement or compromise; and

(iii) the Customer takes no action that is contrary to leadstreet’s interests.

22.2 If a claim, as described in Article 22.1 of these Terms and Conditions, may be or has been asserted, the Customer will permit leadstreet, at the latter’s option and expense, to:

(i) procure the right to continue using the Product;

(ii) replace or modify the Product to eliminate the infringement while providing functionally equivalent performance; or

(iii) return the Product and refund to the Customer a pro rata share of Fees that the Customer has actually paid for the period that the Product is/was not usable.

22.3 leadstreet will have no indemnity obligation whatsoever to the Customer under this Article if the Intellectual Property Rights infringement claim results from:

(i) a correction or modification of the Product not provided by leadstreet;

(ii) the use of the Product by the Customer in a manner not consistent with these Terms and Conditions, the Documentation or the reasonable instructions of leadstreet; or

(iii) the combination of the Product with other software not agreed upon by leadstreet.

Article 23 – Customer Data and data protection

23.1 The Customer retains all ownership rights in the Customer Data. The Customer warrants that (i) the Customer Data has been lawfully collected and processed, (ii) the use of the Customer Data as foreseen in the Agreement will not result in any violation of applicable laws or regulations, and (iii) the Customer Data does not infringe the Intellectual Property Rights or any other rights of any third party. The Customer hereby grants to leadstreet a non-exclusive license to copy, distribute and adapt the Customer Data to the extent reasonably required for the performance of leadstreet's Services and the exercise of leadstreet's rights under this Agreement. This license includes the right to sub-license such rights to leadstreet’s hosting, connectivity, and telecommunications service providers for these purposes. Any modification or processing of Customer Data by leadstreet will never result in any transfer of ownership of such data to leadstreet.

23.2 If the creation of a database is a result of, or forms part of, the Services, such creation shall fall under the sole responsibility of the Customer.

23.3 leadstreet shall treat all Customer Data as confidential and will take appropriate technical and organisational measures to protect such data against accidental or unlawful destruction or loss, alteration, unauthorized disclosure, or access. These measures shall ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected, taking into account the state of the art and the costs of implementation.

23.4 Each party shall, at all times, comply with its respective obligations under the General Data Protection Regulation 2016/679, as amended, and any further implementation or replacement of that law (“Data Protection Legislation”). The word "Process" and the expression "Personal Data" shall have the meaning assigned thereto in the Data Protection Legislation.

23.5 leadstreet shall process Personal Data provided to it pursuant to these Terms and Conditions and the Processor Agreement (Annex I) in accordance with the Data Protection Legislation. All processing of Personal Data by leadstreet is conducted solely on the Customer’s instructions. The Customer is considered the “Data Controller” and leadstreet the “Data Processor” as defined under applicable Data Protection Legislation.

23.6 leadstreet may not process Personal Data for its own purposes nor disclose it to any third party without the Customer’s prior written consent, except where required by law. leadstreet is under a duty of confidentiality regarding the Personal Data, unless otherwise instructed by the Customer or required by law.

23.7 The Customer consents to leadstreet engaging sub-processors to process Personal Data, provided that leadstreet imposes the same obligations on such sub-processors as set out in this Article. leadstreet remains fully responsible for the actions or omissions of its sub-processors.

23.8 Throughout the duration of the Agreement, Personal Data shall be made available to the Customer upon request, subject to technical feasibility. Upon termination of the Agreement, leadstreet will, upon the Customer’s request, return or, to the extent technically possible, securely delete or destroy all Personal Data, unless retention is required by law.

Article 24 – Intellectual Property Rights

24.1 All Intellectual Property Rights in either party’s materials, information or data provided by that party to the other party under these Terms and Conditions will be and remain vested in that party. The other party will have no rights in respect thereof save for any rights expressly granted to it by that party under these Terms and Conditions.

24.2 All Intellectual Property Rights in the Product, including all trademarks, signs and logos used in the Product, shall remain vested in leadstreet at all times. The Customer will have no rights in respect thereof save for any rights expressly granted to it by leadstreet under these Terms and Conditions.

24.3 leadstreet and the Customer each represent and warrant that, to the best of their knowledge, their respective Intellectual Property Rights do not infringe upon the Intellectual Property Rights of any third party.

24.4 The Customer shall indemnify and hold harmless leadstreet against any and all claims regarding infringements of third-party Intellectual Property Rights arising from the use of the Products supplied by leadstreet, to the extent such claims are based on:

(i) protected works that have been processed or integrated at the request of the Customer; or

(ii) any use outside the temporal, geographical or material scope of use as defined or proposed by leadstreet without any expressed or implied limitations.

24.5 All fees, levies or royalties payable to third parties in connection with an Agreement executed by leadstreet on behalf of the Customer – including, but not limited to, fees related to copyrights or other Intellectual Property Rights – shall be borne exclusively by the Customer.

Article 25 – Confidentiality obligations

25.1 The parties acknowledge that, in the course of this Agreement, the parties may become privy to Confidential Information which is disclosed by the other party.

25.2 The Receiving Party shall treat all Confidential Information as strictly confidential and shall not, without prior express written consent of the Disclosing Party, disclose it in whole or in part to any third party or use it for any purpose other than the performance of its obligations under this Agreement. The Receiving Party shall use at least the same level of care in protecting the Confidential Information as it uses to protect its own confidential information, and in any case not less than reasonable care.

25.3 The Receiving Party shall only disclose Confidential Information to those of its employees, officers, directors, consultants, or affiliated entities who have a strict need-to-know such information for the purposes of performing this Agreement and shall ensure that such persons are bound by comparable confidentiality obligations. The Customer shall ensure that its affiliates, directors, employees, agents, and advisers also comply with the obligations under this Article.

25.4 The Receiving Party agrees that prior to providing access to Confidential Information to any subcontractors or agents, such subcontractors or agents shall agree in writing to be bound by confidentiality obligations substantially similar to those contained in this Article. The Receiving Party shall remain liable for any breach of confidentiality by such subcontractors or agents.

25.5 In the event the Receiving Party is requested or required (by subpoena, court order, regulatory body, or otherwise) to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall promptly notify the Disclosing Party, to the extent legally permissible, in order to allow the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party shall only disclose that portion of Confidential Information which it is legally required to disclose.

25.6 Within ten (10) Business Days after (i) the termination of this Agreement, or (ii) the Disclosing Party’s reasonable earlier request at any time, the Receiving Party shall, at the option of the Dislosing Party, return or securely destroy all of the Disclosing Party’s Confidential Information and all copies and records thereof in any form, including from all storage location and/or media.

25.7 Confidential Information shall not include any information that the Receiving Party can demonstrate:

(i) was lawfully in its possession or known to it before receipt from the Disclosing Party without an obligation to maintain its confidentiality;

(ii) was or becomes publicly known without breach of this Agreement;

(iii) was received by the Receiving Party from a third party not in breach of this Agreement; or

(iv) was independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.

25.8 A disclosure by the Receiving Party shall not be considered a breach of confidentiality if:

(i) the disclosure is made strictly to the extent required in a legal or arbitration proceeding brought by either party against the other; or

(ii) the disclosure is required by law or regulation, and in such case, the Receiving Party shall consult with the Disclosing Party, to the extent reasonably possible, prior to making the disclosure.

25.9 If the Receiving Party breaches the confidentiality obligations under this Article 25, the Receiving Party shall be liable to the Disclosing Party for a fixed and immediately payable penalty of fifteen thousand euros (EUR 15,000) per breach, plus two thousand five hundred euros (EUR 2,500) for each day the breach continues, without any prior notice of default being required, and without prejudice to the Disclosing Party’s right to claim higher actual damages through legal proceedings.

25.10 The obligations under this Article shall survive termination of the Agreement for a period of three (3) years.

Article 26 – Publicity

26.1 Neither party may make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

26.2 leadstreet will however always be allowed to communicate that the Customer is a customer of leadstreet on its commercial documentation, without having to obtain the Customer’s prior written consent thereto.

Article 27 – Non-solicitation

27.1 The Customer undertakes that, for the duration of its collaboration with leadstreet as formalised under any Agreement, and for a period of twelve (12) months following the termination or expiry of that Agreement, it shall not, without the prior written consent of leadstreet, directly or indirectly (including through Affiliates):

(i) employ or engage;

(ii) attempt to employ or engage;

(iii) solicit, approach, or otherwise entice; or

(iv) recommend for employment or engagement by a third party or an affiliated entity,

any manager, consultant, employee, director, or independent contractor of leadstreet who is or has been involved in the performance of the relevant Agreement.

27.2 In the event of a breach of this provision by the Customer, the Customer shall be liable to pay leadstreet a fixed compensation equal to one (1) year of the gross annual salary or fee of the manager, consultant, employee, director, or independent contractor concerned.

27.3 For the purposes of this Article, any manager, consultant, employee, director, or independent contractor who has voluntarily ceased working for leadstreet shall be deemed to still be in service for a period of twelve (12) months following the termination of their engagement with leadstreet.

Article 28 – Miscellaneous

28.1 Waiver

The failure of either party at any time to enforce strict compliance with any provision of this Agreement or the Terms and Conditions shall not be deemed a waiver of its right to enforce such provision at a later time. Except where otherwise agreed, leadstreet’s rights under these Terms and Conditions and/or any Agreement are cumulative to and do not replace any statutory rights it may have.

28.2 Assignment

The Customer may not assign or transfer its rights or obligations under this Agreement in any manner without the prior written consent of leadstreet. leadstreet may, however, assign or transfer its rights and obligations under these Terms and/or any Agreement to any Affiliate or third party (including, but not limited to, a financial institution for the purposes of factoring), and may appoint subcontractors to perform its Services in whole or in part.

28.3 Relationship of the parties

Nothing in this Agreement shall be construed as creating a partnership, joint venture, agency relationship, or employer-employee relationship between the Parties. Neither Party shall be deemed to be the agent or employee of the other.

28.4 Notices

All notices, demands or consents under this Agreement must be in writing and delivered to the addresses specified in the Agreement or any updated address provided in writing by either party. Notices may also be delivered by email to the email addresses expressly designated for such purpose by the parties.

28.5 Entire agreement

This Agreement is the complete agreement of the parties and cancels and supersedes all prior and contemporaneous agreements, negotiations, understandings and proposals, whether oral or in writing, between them relating to the subject matter hereof.

28.6 Amendments of the Agreement

This Agreement may be modified only by a written agreement duly executed by all parties. No amendment, modification or waiver of any provision of this Agreement, nor consent to any departure by any party, will in any event be effective unless the same will be in writing and signed by both parties, and then such amendment, modification, waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given.

28.7 Severability

If any provision of this Agreement is found to be invalid, illegal or unenforceable for any reason by a court of competent jurisdiction, that provision shall be severed from the Agreement. The remaining provisions shall remain in full force and effect as if the invalid, illegal or unenforceable provision had never been part of the Agreement. The parties shall immediately and in good faith negotiate to replace the invalid provision with a valid one that closely approximates the original intent and economic effect.

28.8 Legal fairness

leadstreet draws the Customer’s attention to Articles VI.91/3 to VI.91/6 and Articles VI.93 to VI.96 of the Belgian Code of Economic Law. The parties declare that, in their assessment, these Terms and Conditions and the Agreement do not contain any unlawful clauses within the meaning of the aforementioned legislation, considering the specific circumstances in which this Agreement has been concluded. In particular, each party confirms that the provisions of these Terms and Conditions are the result of genuine negotiations conducted on an equal footing, and that they accept each provision with a proper understanding of its content and legal consequences, which they consider fair, balanced, and appropriate in light of the Agreement as a whole and its objectives. The parties confirm that the respective risks assumed under this Agreement have been appropriately and adequately reflected in the price, such that each risk is matched by a corresponding consideration from the other party.

Article 29 – Governing law and jurisdiction

leadstreet and the Customer shall first attempt to resolve any dispute through mutual consultation.

These Terms and Conditions, the Agreement and all agreements arising therefrom shall be governed by and construed in accordance with Belgian law.

All disputes relating to these Terms and Conditions, the Agreement, all agreements arising therefrom and all orders, acceptance or agreement to which these Terms and Conditions apply, shall be subject to the exclusive jurisdiction of the courts and tribunals of Ghent, division Ghent (Belgium).

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ANNEX I: Processor Agreement

Parties:

1. The Customer (hereinafter: the "Controller”)
2. leadstreet (hereinafter: the “Processor")

take into consideration that:

1. The Processor shall, within the framework of the execution or preparation of the Agreement, process personal data on behalf of the Controller;
2. The Parties wish to lay down in this Processor Agreement the arrangements regarding the processing of personal data by the Processor;

have agreed as follows:

1. Definitions

Unless otherwise defined below, the definitions set forth in the Terms and Conditions shall apply.

1.1. GDP: the General Data Protection Regulation (Regulation (EU) 2016/679) including its implementing law.

1.2. Data Subject: the person to whom Personal Data relates, as referred to in Article 4(1) of the GDP.

1.3. Personal Data Breach: a breach of security leading accidentally or unlawfully to the destruction, loss, alteration or unauthorised disclosure of, or unauthorised access to, personal data transmitted, stored or otherwise processed as referred to in Article 4(12) GDP.

1.4. Employees: persons employed by Controller or by Processor, either in employment or temporarily hired.

1.5. Recipient: a natural or legal person, a government agency, a service or another body, whether or not a third party, to whom/to which Personal Data is provided.

1.6. Parties: Controller and Processor.

1.7. Personal Data: any information about an identified or identifiable natural person (the Data Subject) processed within the framework of the Agreement as referred to in Article 4(1) GDP; an identifiable person is considered to be a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more elements characterising the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person.

1.8. Subprocessor: another processor engaged by the Processor to Process Personal Data on behalf of a Controller.

1.9. Processor: the natural or legal person, a government organisation, a service or another body which processes Personal Data on behalf of the Controller as referred to in Article 4 (8) GDP.

1.10. Processing/Processing: an operation or set of operations involving Personal Data or a set of Personal Data, whether or not carried out through automated processes, such as the collection, recording, organisation, structuring, storage, updating or modification, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction of data as referred to in Article 4 (2) GDP.

1.11. Controller: the natural or legal person, a government organisation, a service or another body which, alone or jointly with others, determines the purpose of and the means for Processing Personal Data as referred to in Article 4(7) GDP.

1.12. Processor Agreement: this Processor Agreement to lay down the arrangements as referred to in Article 28 paragraph 3 GDP.

2. Applicability

2.1. This Processor Agreement relates to the Processing of Personal Data by Processor on behalf of the Controller in the context of the performance of the Agreement.

2.2. The nature and purpose of the Processing, the type of Personal Data, the categories of Personal Data, the Data Subjects and Recipients are defined in Annex 1.

Processor guarantees to comply with the requirements of the applicable laws and regulations regarding the Processing of Personal Data.

3. Duration and Termination

3.1. This Processor Agreement shall enter into force when the Agreement enters into force.

3.2. The Processor Agreement ends when the Agreement ends.

3.3. Neither party may terminate this Processor Agreement separately from the Agreement in the interim.

3.4. Obligations which by their nature are intended to continue even after termination of this Processor Agreement shall continue to apply after termination of this Processor Agreement. Such provisions include, for example, those arising from the provisions on confidentiality, liability, dispute resolution and applicable law.

4. Processing

4.1. Processor Processes the Personal Data only on the instructions and based on written instructions of Controller subject to different legal requirements applicable to Processor. Processor shall not Process Personal Data longer or more extensively than necessary for the performance of the Agreement.

4.2. If in the opinion of Processor an instruction referred to in the first paragraph of this Article violates a statutory data protection regulation, it shall notify Controller prior to the Processing, unless a statutory regulation prohibits such notification.

4.3. If Processor is required to disclose Personal Data pursuant to a statutory regulation, it shall inform Controller immediately, and if possible prior to the disclosure.

4.4. Processor shall ensure that only its Employees have access to the Personal Data. The exception to this is the use of Subprocessors in accordance with the provisions of Article 11 of this Processor Agreement. Processor limits access to Employees for whom access is necessary for their work, whereby access is limited to Personal Data that these Employees need for their work. Processor shall also ensure that the Employees who have access to the Personal Data have received a proper and complete instruction on handling Personal Data and that they are familiar with the responsibilities and legal obligations.

4.5. Controller is legally obliged to comply with the applicable privacy laws and regulations. In particular, Controller shall determine whether there is a lawful basis for Processing the Personal Data. Processor shall ensure that it complies with the regulations applicable to it as Processor regarding the Processing of Personal Data and the agreements made in this Processor Agreement.

4.6. The Processing takes place under the responsibility of Controller. Processor has no control over the purpose and means of the Processing and does not make decisions on matters such as the use of Personal Data, the retention period of Personal Data processed for Controller and the disclosure of Personal Data to third parties. Controller must ensure that it has clearly defined the purpose and means of Processing Personal Data.

4.7. Controller shall take reasonable steps to keep Personal Data up to date to ensure the data are not inaccurate or incomplete with regard to the purposes for which they are collected.

5. Security

5.1. Processor has taken all reasonable measures to implement the appropriate security measures listed in the Appendix 2 accompanying this Processor Agreement. In taking the security measures, account has been taken of the risks to be mitigated, the state of the art and the costs of the security measures.

5.2. Controller has properly informed itself about the security measures taken by Processor and believes that these measures have a security level appropriate to the nature of the Personal Data and the scope, context, purposes and risks of the Processing.

5.3. The parties recognise that ensuring an appropriate level of security may continually force the implementation of additional security measures. Processor shall ensure a security level appropriate to the current risk. Processor shall inform Controller if any of the security measures change substantially.

5.4. Processor shall provide appropriate safeguards for the application of the technical and organisational security measures in relation to the Processing to be performed. If Controller wishes to have the manner in which Processor complies with the security measures inspected, Controller may make a request to Processor to do so. Processor and Controller will make joint arrangements in this regard. The costs of an inspection shall be borne by Controller. Controller shall make a copy of the inspection report available to Processor.

5.5. Processor shall not, unless it has obtained express prior written consent to do so from the Controller, Process or have Processed Personal Data processed by itself or by third parties in countries outside the European Union ("EU").

6. Confidentiality

6.1. All Personal Data that the Processor receives from the Controller and/or collects or is required to collect itself for the purpose of Processing in accordance with the provisions of the Agreement for that purpose shall be subject to an obligation of confidentiality towards third parties.

6.2. Processor shall not use the Personal Data for a purpose other than that for which it obtained it, even if it is put in such a form that it is not traceable to Controller or natural persons, such as the Data Subject.

6.3. Processor shall ensure that the persons authorised to Process the Personal Data have undertaken to observe confidentiality, or are bound by an appropriate legal obligation of confidentiality.

6.4. The obligation of confidentiality shall not apply insofar as Controller or the Data Subject himself/herself has expressly consented to the disclosure of the Personal Data to a third party or if and insofar as there is a legal obligation to disclose information to a third party.

6.5. If Processor uses the services of Sub-processors, it shall unconditionally ensure that the Sub-processors shall accept in writing the same duty of confidentiality as agreed between the Parties and shall strictly observe such duty of confidentiality.

7. Transferability

The Parties shall not be permitted to transfer this Processor Agreement and the rights and obligations associated with this Processor Agreement to another person unless they jointly agree and agree in writing.

8. Liability

8.1. Controller warrants that the Processing of Personal Data on the basis of this Processor Agreement is not unlawful and does not infringe the rights of Data Subject(s).

8.2. Processor shall not be liable for damages resulting from Controller's failure to comply with the GDP or other laws or regulations.

8.3. The limitation of Processor's liability agreed in the Agreement shall apply to the obligations set forth in this Processor Agreement.

9. Co-operation obligations

9.1. The GDP and other (privacy) legislation grants certain rights to the Data Subject. Processor shall provide its full and timely cooperation to Controller in the performance of Controller's obligations towards the Data Subject.

9.2. A complaint received by Processor or a request from a Data Subject regarding Processing of Personal Data shall be forwarded by Processor to Controller without delay.

9.3. Upon the first request to that effect by the Controller, the Processor shall provide the Controller with all relevant information concerning the aspects of the Processing of Personal Data performed by it so that the Controller can demonstrate, partly on the basis of that information, that it complies with the applicable (privacy) legislation.

9.4. Processor shall furthermore provide all necessary assistance at the first request of Controller in complying with the statutory obligations imposed on Controller under the applicable privacy laws (such as, for example, conducting a privacy impact assessment). Processor may charge Controller for the assistance rendered in connection with such requests.

10. Breach in connection with Personal Data

10.1. Processor shall inform Controller without unreasonable delay, as soon as it becomes aware of a Personal Data Breach, in accordance with the arrangements set forth in Appendix 3. Processor shall endeavor to inform Controller within 48 hours after Processor discovers the Personal Data Breach or as soon as possible after Processor is informed about it by a Subprocessor.

10.2. Processor shall also inform Controller of developments regarding the Personal Data Breach reported by Processor.

10.3. The notification of a Personal Data Breach to the Personal Data Authority and Data Subject(s) (if any) is always the own responsibility of a Controller.

10.4. The Processor’s obligation to report or respond to a Personal Data Breach is not and will not be construed as an acknowledgement by the Processor of any fault or liability with respect to the Personal Data Breach.

10.5. (Maintaining) a register of Personal Data Breaches is always a Controller's own responsibility.

10.6. Any costs incurred by the Processor for the services delivered in relation to the aforementioned assistance related to Personal Data Breaches caused by the Controller, will be charged to the Controller.

10.7. Controller remains fully responsible for Personal Data Breaches caused by Controller’s actions or negligence.

11. Engagement of Subprocessors

11.1. Processor may outsource (part of) its activities consisting of Processing Personal Data to a Subprocessor.

11.2. Processor shall impose the same or more stringent obligations on this Subprocessor as arise for itself from this Processor Agreement and the law. Processor shall set out these agreements in writing and shall monitor compliance with them by the Subprocessor.

11.3. Processor remains fully liable to Controller for the consequences of outsourcing work to a Subprocessor.

12. Information obligation and audits.

12.1. Processor shall make available all information necessary to demonstrate that the obligations under this Processor Agreement have been and are being fulfilled.

12.2. Processor shall make available to the Controller all information necessary to:

i) demonstrate compliance with the obligations set forth in this Processor Agreement including the obligations listed in Articles 5.1 to 5.3 of this Processor Agreement;
ii) enable audits, including inspections, by the Controller or an auditor authorised by the Controller.

13. Return or erasure

13.1. Within a period of ninety (90) calendar days upon termination of the Processor Agreement, Processor shall, at Controller's option, ensure the return to Controller or erasure of all Personal Data. Processor shall delete copies, subject to differing legal requirements.

13.2. The Processor may retain Personal Data to the extent required by Union or Member State law, and only to the extent and for such period as required by Union or Member State law, and always provided that the Processor shall ensure the confidentiality of all such Personal Data and shall ensure that such Personal Data is only Processed as necessary for the purpose(s) specified in the Union or Member State law requiring its storage and for no other purpose.

14. Governing law and competent court

14.1. The Processing Agreement shall be governed by Belgian law.

14.2. Disputes regarding the content and execution of the Processor Agreement shall be settled by the court within the district where the Processor is located.

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APPENDIX 1. Processing of Personal Data.

Description of Processing Activities by Processor:

Processor commercialises an application that adds automation features on the connected Hubspot account, which includes:

- Inbound Marketing within HubSpot.

- Import, synchronisation of data between different marketing tools.

- Adaptations provided to website.

For more information: https://pocketknife.leadstreet.be/features

Processing purposes:

- Execution or preparation of the Agreement.

An intermediate server may be used (app.leadstreet.be, hosting by Combell nv or a Google Cloud Server, hosting by Google) which itself does not store data in case of synchronisations.

Personal data processed: first name, last name, email, telephone, address, fax, ... plus profiling data.

Retention Period: Processor does not retain Personal Data longer than strictly necessary to fulfill the purposes for which the Personal Data is collected.

Other Sub-data processors (at date of contract): fluosoft c.v., Danica Corpuz, Ashley Sevilla, AM-IT bv, Roy Vincent Niepes, Nui Digital Marketing, Andrew Llorena, doink bv, root bv, Mat Famorca

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APPENDIX 2: Appropriate technical and organisational measures

Technical security measures:

☐ Up-to-date virus scan

☐ LastPass access mechanism

☐ Unique login code and password (change regularly)

☐ Use of SaaS products that are GDPR compliant

☐ Make use of 2FA where possible

Organisational security measures

☐ Locking desktop and laptop computers

☐ Internal privacy clauses

☐ NDA with sub-processors

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APPENDIX 3: Agreements regarding Personal Data Breach

In the event of a Personal Data security breach discovered by Processor or a loss or compromise of Personal Data, Processor shall notify Controller within forty-eight (48) hours of discovery by sending an email to the Controller.

In this email, Processor shall at least indicate that there has been a Personal Data Breach, what is the (alleged) cause thereof it the Personal Data Breach, what is the (as yet known and/or expected) consequence, what is the (proposed) solution and who has already been informed.