Publisher Open Exchange Terms and Conditions

Thank you for your interest in serving as a publisher (a “Publisher”) on the PX customer acquisition Platform. Our Platform seeks to provide our advertising customers (each, a “Customer”) with programmatic tools and to leverage machine learning to find the customers they want, with a high level of source transparency. The Platform supports an open exchange (the “Open Exchange”), which provides Customers with a transparent way to acquire customers from hundreds of vetted sources. By serving as a Publisher on our Platform, you agree to the terms of this PX Publisher Agreement (the “Agreement”).

When we refer to “you” throughout this Agreement, it means the Publisher providing Data and/or Leads (each as defined below) pursuant to this Agreement. When we refer to “we,” “us” or “PX,” it means PX, Inc., a Delaware corporation with offices located at 44 Wall Street, Suite 505, New York, NY 10005. When we refer to a “party” or the “parties,” it means either or both of us.

The specific features of your business arrangement with us are detailed in the PX Publisher Insertion Order (the “IO”) entered into between the parties and attached hereto.

  1. Definitions.

Authorized User” means one or more employees identified by you who will be authorized by you to have access to and use the Platform on your behalf during the Term.

Billable Lead” means a Qualified Lead that has been accepted by our Customers and has not been returned for any specific reason.   

Calls” means inbound consumer phone calls or call transfers.

Conversion Data” means information, data and other content derived by or through the Platform from Processing Customer Data that is sufficiently different from Customer Data so that Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis, or further Processing of such information, data or content.

Creatives and Sites” means promotional and marketing content, text, artwork, images, graphics, and other materials (e.g., banners, landing pages) provided to you by us or developed by you for the purpose of generating Billable Leads.

Customer Data” means, other than Conversion Data, information, data and other content that is collected, downloaded, or otherwise received, from or provided to Customers by or through the Platform. For the avoidance of doubt, Customer Data does not include Leads.

Daily Cap” means the maximum number of Leads the Platform will accept for a specific Marketing Campaign in one calendar day. 

Data” means the information procured, compiled, owned, and maintained in a proprietary computerized database, including, but not limited to, permission-based names, email addresses, source URLs (or unique identifiers representing such source URLs), signup IP addresses, signup time/date stamps, postal addresses, telephone numbers, and other consumer information.

Incentive Programs” means promotional programs in which users are given points, rewards, eligibility to win a prize, access to premium content, or similar incentives in exchange for participating in our advertising offers.  Incentive Programs are a prohibited form of content under this Agreement.    

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Leads” means (1) contact information that is submitted by a Person through an online form requesting a quote for the product or service advertised, provided by you directly to the Platform, and (2) Calls.

Marketing Campaign” means an online advertising campaign for a consumer product or service. 

Marketing Campaign Guidelines” means specific details regarding how, and how not, to promote Marketing Campaigns, by which you must abide at all times. These include, but are not limited to, guidelines for Creatives and Sites, restricted keywords for search campaigns, and usage of logos. Marketing Campaign Guidelines can be found at https://www.px.com/offer-guidelines/

Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

Personal Information” means information that identifies, relates to, or describes a particular Consumer.  Personal Information includes, but is not limited to, the data elements listed in section 140(o)(1)(A)-(K) of the CCPA, if any such data element identifies, relates to, or describes a particular individual.

Platform” means our online Lead exchange and bidding software application, which hosts the Open Exchange, and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing. The Platform includes a Publisher interface that we will make available to you so that you may track Leads and gain further insights into a campaign’s performance.

Process” means to take any action or perform any operation or set of operations that the Platform is capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.

PX Personnel” means all individuals involved in the performance of this Agreement as employees, agents, or independent contractors of PX or of any Subcontractor.

Qualified Lead” means a Lead (a) based on a user’s genuine interest in receiving a quote for the product or service being advertised, (b) generated by you for our use on the Platform, (c) that passes all validation filters set by us, (d) that is posted to the Platform in real time through either a Direct Post or Ping-Post (each as defined below), immediately following a user’s opt-in, (e) from a user to whom you displayed no other related offerings of the same product vertical during the visit in which the Lead was generated, and (f) from a user that, to your knowledge, has not previously opted in to any marketing program related to Marketing Campaigns on the Platform.

  1. Services.
    1. General. You will direct Internet traffic to the Creatives and Sites for the purpose of generating Billable Leads for the Platform.
    2. Reporting Leads. You will report Qualified Leads in the Platform, which will be accessible to you through a Publisher’s interface. All Leads must be tagged with a “SubID” that provide additional identification describing the Lead. At your request, Qualified Leads may also be reported directly to you through post-back URL technology. You will not be compensated for Leads generated in excess of the Daily Cap.
    3. Marketing Campaign Options
        1. In a “Direct Post” campaign, you will post the Qualified Lead to a specified URL in approved formatting via an API transaction. If the formatting is accepted, a successful response will be returned. For the confirmation of whether a Qualified Lead is a Billable Lead, you are advised to set up a Sell Response as per specifications provided by us.
        2. In a “Ping-Post” campaign, you will ping the Platform with anonymized Qualified Lead data so that we may evaluate the Lead for potential purchase. Within a maximum 25 seconds of receiving the anonymized Qualified Lead, the Platform will ping you with a bid price. If the bid price is acceptable to you, the Lead will be posted to the Platform. We will confirm if the Qualified Lead becomes a Billable Lead. You are required to ping all available real time Leads and you must provide us with the type of traffic (e.g. search, email, premium display, etc.) through which such Leads were generated.
    4. Marketing Campaign Guidelines. Each Marketing Campaign has specific detailed Marketing Campaign Guidelines, including, but not limited to, TCPA and CCPA disclosures, privacy policies, keyword restrictions and other important details, all of which are available at https://www.px.com/offer-guidelines//. Both parties acknowledge that the damages resulting from your violation the Marketing Campaign Guidelines may not be readily ascertainable at the time of the violation but that the parties reasonably believe multiple violations could result in increasing penalties imposed upon us by government authorities and/or Customer. 
    5. Approved Creatives and Sites. You will only run Creatives and Sites provided by or approved by us (the “Approved Creatives and Sites”). You may not create your own Creative and Site assets (including banners, call center scripts, advertorial pages or landing pages) or modify our Approved Creatives and Sites without prior approval from us. You are at all times required to frequently check for updates regarding Approved Creatives and Sites in the Marketing Campaign Guidelines. You will include in your consumer facing terms of use a prominent and conspicuous provision stating that users irrevocably waive any right they may have to join claims with those of others in the form of a class action or similar procedure against you or your affiliates and business partners and that any dispute will be resolved only by individual arbitration, unless the dispute is otherwise eligible to be brought in small claims court. Such terms of use must be expressly agreed to by users as part of the disclaimer and consent language in the Approved Creative and Site text.    
    6. Prohibited Content. You will not place Creatives and Sites with sites, or include Creatives and Sites in emails, that contain or promote (or link to sites that contain or promote) sexually explicit or obscene materials; promote violence, hate, or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, or age; constitute or promote illegal activities; or, are deemed to be offensive in nature, degrading, libelous, profane, or in bad taste. Your and your affiliates’ sites and emails may not contain any material that infringes on the trademark, copyright, or patent of any person, or that damages our reputation, our brands (including but not limited to PX.com), or the reputation of our Customers. Further, you and your affiliates will not target minors for Marketing Campaigns and will not provide any Leads generated through Incentive Programs.
    7. Customer Inquiries. Upon request by us and in response to a Customer inquiry, you agree to promptly provide full details regarding the source of any Lead. 
  2. Your Obligations.
    1. Access. You will appoint one Authorized User to be your primary agent in authorizing your Authorized Users to access the Platform with your password and credentials (“Access ID”).  You are solely responsible for monitoring your Authorized Users’ access to and use of the Platform, and for any Authorized User’s breach of this Agreement.  You must promptly take all reasonably necessary steps, including providing notice to us, to effect the termination of an Access ID for any Authorized User if there is any compromise in the security of that Access ID, or if unauthorized use is suspected or has occurred.  We will not be liable to you for damages arising from your use of Access IDs in violation of the terms of this Agreement.
    2. Effect of Your Delay or Failure. We are not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement (each, “Your Delay”).
    3. Corrective Action and Notice. If You become aware of any actual or threatened activity prohibited by this Section 3, you will, and will cause your Authorized Users to, immediately: (a) take all reasonable and lawful measures within your or their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify us of any such activity.
    4. Non-Solicitation. During the Term and for one (1) year thereafter, you will not, and will not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor, any Person then or within the prior three (3) months employed or engaged by us or any third party engaged by us (each, a “Subcontractor”). In the event of a violation of this Section 3.4, we will be entitled to liquidated damages equal to the compensation paid to the applicable employee or contractor during the prior twelve (12) months.
    5. Non-Circumvention. During the Term and for a period of 180 days thereafter, you will not solicit lead generation business from our Customers; provided, however, that this prohibition will not prevent you from maintaining a contractual relationship existing as of the Effective Date of such IO. In the event of a violation of this Section 3.5, we will be entitled to liquidated damages equal to fifty percent (50%) of the gross revenue generated by you in violation of this Section 3.5, in addition to any other remedies we may have at law or in equity.    
  3. Privacy. You will clearly and conspicuously post a link to an easily understood privacy policy wherever you collect personally identifiably information from users.  Such privacy policy will: (a) comply with all Federal Trade Commission guidelines and any other applicable laws including but not limited to CCPA, rules, and regulations with respect to personally identifiable information and online privacy, including all applicable laws, rules and regulations with respect to the online privacy of minors; (b) identify the nature and scope of the collection and use of information gathered by you; (c) offer users the ability to opt-out of collection and use of personal data; (d) comply with all applicable provisions of the CCPA. You will act solely as a Service Provider to us with respect to Personal Information. You shall cooperate with a customer if an individual requests (i) access to his or her Personal Information, (ii) information about the categories of sources from which the Personal Information is collected, or (iii) information about the categories or specific pieces of the individual’s Personal Information, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows the individual to transmit the information to another entity without hindrance. You shall promptly inform Customer in writing of any requests with respect to Personal Information.  Upon Customer’s request, you shall promptly delete a particular individual’s Personal Information from your records.  In the event you are unable to delete the Personal Information for reasons permitted under the CCPA, you shall (i) promptly inform Customer of the reason(s) for its refusal of the deletion request, (ii) ensure the privacy, confidentiality and security of such Personal Information, and (iii) delete the Personal Information promptly after the reason(s) for your refusal has expired. Where you provide a third party with access to Personal Information, or contracts any of its rights or obligations concerning Personal Information to a third party, you shall enter into a written agreement with each such third party that imposes obligations on the third party that are equivalent to those imposed on you under this section.   
  4. Prohibited Data. You will ensure that Data and all Leads derived therefrom comply with the Telephone Consumer Protection Act (“TCPA”), the California Consumer Privacy Act (“CCPA”), as amended, CAN-SPAM Act and similar laws (Data and Leads violating the foregoing, “Prohibited Data”). You are solely responsible for reviewing all of Data and Leads and you will ensure that none of your Data or Leads constitute or contain any Prohibited Data. You will not, and will not permit any Authorized User or other Person to, provide any Prohibited Data to us or directly to Customers. We hereby disclaim any and all liability relating to all Prohibited Data. You will not bring any actions or claims against us with respect to Prohibited Data. In the event of a legal claim by a third party relating to Prohibited Data, you will be solely responsible for all associated costs.
  5. Payment Terms.
    1. Payment. We will make payments to you pursuant to the terms of the IO. We will make all payments to you in excess of $500 within 30 days following the last day of each month. Balances of $500 or less will carry forward until such time as your balance exceeds $500. 
    2. Payment Disputes. If you dispute any payment made by us, you will notify us in writing (including by email) within 10 days of receiving payment. Failure to do so will result in waiver by you of any claim relating to such payment.
    3. Taxes. All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
  6. Audit Rights. You agree that at all times during the Term you will maintain accurate books and records relating to Data and Leads generated under this Agreement. You agree that we, or our designee that is legally bound to obligations of confidentiality and nondisclosure, will have the right during the Term to examine, inspect, audit, and review all such books, records, and any source documents used in the preparation thereof during normal business hours upon written notice to you at least five business days prior to the commencement of any such examination, inspection, review, or audit. Such audit will be at your sole cost and expense and will be strictly limited to those books and records specifically relating to information regarding Data and Leads generated under this Agreement. You will immediately pay us the amount of any overpayment revealed by any such audit, plus interest calculated at a rate of one and one-half percent (1.5%) per month from the date such overpayment was made until the date of repayment to us. Notwithstanding the foregoing, if an audit determines you overbilled us by more than five percent, such audit will be at your sole cost and expense.
  7. Fraud.  If you, your affiliates, your associated service providers, or any other of your agents fraudulently generate Leads, inflate lead counts by fraudulent traffic generation, or alter the value of lost bids (each as determined in our sole discretion), through deceptive marketing practices, or through automated means, you will forfeit your compensation for all Marketing Campaigns in which fraud was determined by us, and this Agreement will be subject to immediate termination by us.
  8. Intellectual Property.
    1. General Intellectual Property Rights. We will own any and all right, title, and interest in and to: (a) our Approved Creatives and Sites; (b) our Platform and Publisher interface; (c) our data validation filters and lead-distribution technology, and (d) all intellectual property rights (including, without limitation, copyrights and patent rights) in the foregoing. All data passed to us as a Qualified Lead is our sole and exclusive property and is deemed “Confidential Information” under this Agreement. You agree that you have no rights in or licenses to any of the foregoing. Additionally, you hereby unconditionally and irrevocably grant to us an assignment of all right, title and interest in and to the Conversion Data, including all Intellectual Property Rights relating thereto.
    2. Publisher Intellectual Property Rights. We acknowledge and agree that: (i) all right, title and interest in and to your website and any electronic deliverables including reporting, communications, marketing materials (excluding those produced on our behalf) and all derivatives thereof, excluding our trademarks, trade name, logos, and all intellectual property rights therein (including without limitation any non-PX patents, copyrights, trade secrets, rights, trademarks, trade names, moral rights and other proprietary rights embodied therein or associated therewith) and all modifications, changes, enhancements or additions thereto (whether initiated by us or otherwise) (collectively, “Publisher IP”), all of which are protected by copyright, trade secret, and other proprietary rights and laws, shall at all times remain your proprietary property, or property of any third party licensors, as applicable; and (ii) we in no way receive any right or interest in any of the foregoing other than the limited license granted hereunder to use them in accordance herewith. To the extent that we acquire any rights in the Publisher IP, we assign such rights to you and waives any moral rights we may have to the Publisher IP to and in your favor. Your name, logo, and the product names associated with the services rendered to us are your trademarks or trademarks of third parties, and we will not remove or alter any of your trademarks or logos.
    3. Consent to Use Data. You hereby irrevocably grant all such rights and permissions in or relating to Data (a) to us, our Subcontractors and the PX Personnel, as necessary or useful to generate Leads pursuant to this Agreement; and (b) to us as are necessary or useful to enforce this Agreement, exercise our rights, and perform our obligations hereunder.
  9. Confidentiality. You agree not to disclose PX Confidential Information without our prior written consent. “PX Confidential Information” includes: (a) our proprietary information; (b) information marked or designated by us as confidential; (c) information otherwise disclosed in a manner consistent with its confidential nature; (d) the terms and conditions this Agreement; and (e) information conveyed by us to you, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by you to be treated as confidential. PX Confidential Information does not include information that you already knew prior to the Effective Date, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party.
  10. Term and Termination.
    1. Term. The initial term of this Agreement commences as of the IO Effective Date and will continue in effect for a period of twelve (12) months (the “Initial Term”) unless otherwise terminated earlier in accordance with this Agreement. This Agreement will automatically renew for additional twelve (12) month periods unless earlier terminated in accordance with this Agreement or either party gives the other party written notice of nonrenewal at least sixty (60) days prior to the expiration of the then-current term (each, a “Renewal Term,” and, together with the Initial Term, the “Term”).
    2. Termination; Suspension. This agreement will terminate at any time upon notice from us at our sole discretion. In all events except for a material breach by you, we will remain liable for all Billable Leads generated prior to the effective date of termination. In the event of a material breach by you, we may terminate this Agreement and retain all payments then due to you. Upon termination by either party, you will cease generation of Leads on our behalf and will remove all Creatives and Sites from your systems.
    3. Surviving Terms. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement will survive any expiration or termination of this Agreement.
  11. Representations and Warranties; Disclaimer.
    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Additional Representations, Warranties and Covenants. You represent, warrant and covenant to us that you own or otherwise have and will have the necessary rights and consents in and relating to Customer Data so that, as received by us and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party or violate any applicable law.
    3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES HEREUNDER, WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
  12. Indemnification. You agree to indemnify and defend us and our affiliated companies, agents, and Customers from and against any and all third-party claims and liabilities arising out of or related to Data and/or Leads you provide under this Agreement or your breach of any term of this Agreement.
  13. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THIS AGREEMENT, OR OF SECTION 5 OF THIS AGREEMENT (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOST PROFITS; OR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) EXCEPT WITH RESPECT TO AMOUNTS OWED BY A PARTY HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE NET AMOUNT PAID BY THAT PARTICULAR PARTY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the understanding between the parties.
  14. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
  15. Miscellaneous.
    1. Further Assurances. Upon a party’s reasonable request, the other party will, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
    2. Relationship of the Parties. The parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture between the parties.
    3. Marketing Materials. We may include your name, logo or other indicia in our promotional and marketing materials.
    4. Notices. Except as otherwise expressly set forth in this Agreement, all notices and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4):

If to us:

44 Wall Street, Suite 505
New York, NY 10005

E-mail: notice@px.com

Attention:  Sebastiaan Offers / PX, Inc.

If to you:

To the address and contact person set forth in the IO.

    1. Entire Agreement. This Agreement is our entire agreement relating to your services as a Publisher and supersedes any prior or contemporaneous agreements on that subject. This Agreement may be amended in a writing signed by both parties that expressly states that it is amending this Agreement.
    2. Assignment. Neither party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party; provided, however, that we may assign our rights or delegate our obligations, in whole or in part, without your consent, to (a) one or more of our subsidiaries or affiliates, or (b) an entity that acquires all or substantially all of our business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party enters into a novation releasing the assigning or delegating party of its obligation under the Agreement.
    3. No Third-party Beneficiaries. This Agreement does not create any third-party beneficiary rights.
    4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
    5. Severability. If any particular term of this Agreement is not enforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
    6. Governing Law; Venue. This Agreement is governed by and construed in accordance with New York law without regard to the conflicts-of-law rules thereof. The jurisdiction and venue for all disputes hereunder will be the state and federal courts in the County and State of New York, and the parties hereby consent to the personal jurisdiction of those courts.
    7. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    8. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 and, in your case, Section 3.3 or Section 5, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    9. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs from the nonprevailing party.