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Confidential
and Proprietary
LICENSED
SOFTWARE
TERMS AND
CONDITIONS
1. Introduction.
Traffic
Domination owns or is otherwise authorized to distribute the
Licensed Software (as defined below). Unless otherwise provided
in the relevant Schedule (as defined below) to this Agreement,
the Licensed Software is licensed to Licensee for use by Licensee
on a company-wide basis. This Agreement will be effective as
of the date set forth on the Traffic Domination Software Subscription
Form that forms a part of this Agreement (the "Traffic
Domination Software Subscription Form"), and each Schedule
to this Agreement will be effective as of the date set forth
on the Traffic Domination order form that forms a part of such
Schedule.
2. Definitions.
2.1 "
Authorized User" shall mean a Licensee or an employee of
the licensee who, to the extent required by Traffic Domination
for specific Licensed Software, has (i) submitted to Traffic
Domination a completed written or electronic copy of Traffic
Domination's User Registration Form relating to such Licensed
Software, and (ii) been issued an individual user login and
an individual password for the Licensed Software by Traffic
Domination. Licensee acknowledges and agrees that actions of
Authorized Users shall be deemed to be actions of Licensee.
2.2 "
Documentation" shall mean the standard end-user manual(s)
and quick reference materials that Traffic Domination makes
generally available for the Licensed Software, in either hard-copy
or electronic form.
2.3 "
Traffic Domination Support" shall mean the online software
support Traffic Domination makes available to Licensee to facilitate
the reporting and resolution of Incidents.
2.4 "
Incident" shall mean (i) any irregularity, error, problem
or defect resulting from an incorrect functioning of any version
of the Licensed Software if such irregularity, error, problem
or defect renders the Licensed Software incapable of meeting
the material specifications contained in its Documentation or
causes incorrect functions to occur, or (ii) an incorrect or
incomplete identification, statement or diagram in the Documentation
that causes the Documentation to be inaccurate or incomplete
in any material respect.
2.5"
Licensed Materials" shall mean the Licensed Software and
the Documentation.
2.6 "
Licensed Software" shall mean the computer software described
in the first paragraph of Part I of each Schedule to this Agreement.
The term "Licensed Software" shall also include any
modifications, updates, enhancements and releases to such software
which are provided to Licensee by or on behalf of Traffic Domination,
from time to time, pursuant to such Schedule(s). Depending upon
the Licensed Software in question, all or a portion of the Licensed
Software may reside on, and be provided to Licensee through,
a Traffic Domination or third-party computer and not be delivered
to Licensee.
2.7 "
Licensee" shall mean the party identified as such on the
Traffic Domination Software Subscription Form.
2.8 "
Losses" shall mean any liabilities, claims, actions, suits,
proceedings, judgments, losses, damages, costs and expenses.
However, the term "Losses" shall not include legal
and other expenses incurred in defending an indemnifiable claim
under this Agreement for which the financial responsibilities
of the parties are specified in Section 14.
2.9 "Marks"
shall mean a party's registered or unregistered trade names,
trademarks, logos and service marks. Without limiting the generality
of the foregoing, Licensee acknowledges that Traffic Domination's
Marks include "Traffic Domination®".
2.10 "
Proprietary Information" of a party shall mean (i) information
disclosed by such party relating to product development strategy
and activity, marketing strategy, corporate assessments and
strategic plans, pricing, financial and statistical information,
accounting information, identity of suppliers, software, systems,
processes, formulae, inventions, discoveries, policies, guidelines,
procedures, practices, disputes or litigation, (ii) other confidential,
proprietary or trade secret information disclosed by such party
that is identified in writing as such at the time of its disclosure,
(iii) all other confidential, proprietary or trade secret information
disclosed by such party, which a reasonable person would recognize
as such, (iv) information relating to such party's employees,
contractors or customers which, if released, would cause an
unlawful or actionable invasion of privacy, and (v) any compilation
or summary of information or data that is itself Proprietary
Information. Without limiting the generality of the foregoing,
Licensee acknowledges and agrees that the Licensed Materials
are the Proprietary Information of Traffic Domination and/or
its Third-Party Licensors. For purposes of this Agreement, information
shall be deemed to be disclosed by a party if such information
is disclosed by any of its officers, employees, directors, contractors,
agents or representatives.
2.11 "
Schedule" shall mean any schedule entered into from time
to time pursuant to this Agreement, which schedule (with the
exception of Schedule A) refers to this Agreement.
2.12 "
Seller/Servicer" shall mean an entity that is a party to
a "Selling and Servicing Contract" with Traffic Domination.
2.13 "
Subscription Fees" shall mean all fees set forth in Section
8.1 of this Agreement and of the Schedules(s) hereto.
2.14 "
Third-Party Licensor" shall mean any third party that licenses
or otherwise conveys the right to use and/or distribute any
component of the Licensed Materials, owned or otherwise made
available by such third party to Traffic Domination, including,
but not limited to, any third party that licenses to Traffic
Domination the right to provide remote access to its software,
data, services or other materials.
3. Grant of Rights and Imposition of Obligations.
3.1 License.
Subject to the terms and conditions of this Agreement and compliance
therewith by Licensee, during the term of this Agreement, Traffic
Domination grants Licensee a non-exclusive, non-transferable
license (i) to permit its Authorized Users to use the Licensed
Software solely in executable form, (ii) to install (if applicable)
one copy of any Licensed Software delivered to Licensee by or
on behalf of Traffic Domination for each Authorized User of
such Licensed Software, and (iii) to use the associated Documentation.
3.2 Right
to Copy Software. Licensee may not copy the Licensed Software
except (i) as necessary to exercise its right to install any
Licensed Software delivered pursuant to Section 3.1(ii), and
(ii) for making one (1) copy of any Licensed Software installed
pursuant to Section 3.1(ii) for backup and archival purposes.
Licensee shall reproduce and include Traffic Domination's and
any Third-Party Licensor's trademark, trade name, copyright
and other proprietary rights notices, legends, symbols or labels
appearing on or in the Licensed Software on all copies of the
Licensed Software, and all copies shall be subject to all terms,
conditions and obligations set forth in or arising under this
Agreement.
3.3 Right
to Copy Documentation. Licensee may copy the Documentation (other
than the Documentation of Third-Party Licensors) to the extent
necessary to exercise the foregoing licenses. Licensee shall
reproduce and include Traffic Domination's trademark, trade
name, copyright and other proprietary rights notices, legends,
symbols or labels appearing on or in the Documentation on all
copies of the Documentation and all copies shall be subject
to all terms, conditions and obligations set forth in or arising
under this Agreement.
3.4 Restrictions
on Use; Audit Rights. The foregoing rights to install, use and
copy various components of the Licensed Materials shall be subject
to the following restrictions:
(a) Licensee
shall not copy or allow copies of the Licensed Materials to
be made, except as specifically authorized under this Agreement;
(b) Licensee
shall only use the Licensed Materials for its own internal business
purposes. Without derogating the generality of the foregoing,
(i) Licensee shall not use or allow others to use the Licensed
Materials in a multiple-use arrangement or as a part of a service
bureau, and (ii) Licensee shall only use the Licensed Materials
in support of its web site creation activities;
(c) Licensee
shall not resell, sublicense, distribute or otherwise transfer
for any purpose any component of the Licensed Materials to any
person, firm or entity;
(d) Licensee
shall not rent, lease, grant a security interest in, or otherwise
transfer ownership rights to, the Licensed Materials;
(e) Licensee
shall not attempt to disassemble, decompile, reverse engineer,
derive or otherwise reproduce any part of the source code form
of the Licensed Software, except to the extent that such activity
is expressly permitted by applicable law;
(f) Licensee
shall not modify, alter, translate or create derivative works
based upon the Licensed Materials;
(g) Licensee
shall only use the Licensed Materials for their intended use,
as described in the Documentation; and
(h) Licensee
shall comply with the terms and conditions of any "shrink-wrap,"
"click-wrap" or similar notice or message contained
in the Licensed Software, once Licensee has accepted the terms
and conditions of such notice or message by using the related
functionality or service or taking such other action that such
notice or message states will constitute acceptance thereof.
Traffic
Domination shall have the right, upon reasonable notice to Licensee,
to enter Licensee's premises to audit Licensee's use of the
Licensed Materials and Licensee agrees to allow Traffic Domination
or its representatives access to such facilities, books and
records as are reasonably required to audit Licensee's compliance
with this Agreement.
3.6 Unauthorized
Representations. Without the express prior written consent of
Traffic Domination, Licensee agrees not to (i) make any representations,
statements or suggestions to a third party that purport to be
or might reasonably be construed to be made on behalf of Traffic
Domination or its Third-Party Licensors, or (ii) make any representations
regarding the capabilities of the Licensed Software other than
those made by Traffic Domination or its Third-Party Licensors
in the most recent version of the Documentation.
4. Ownership of Licensed Materials.
4.1 Ownership.
Licensee agrees that title and all ownership rights to the Licensed
Materials and all copies thereof made by Licensee hereunder,
and any and all copyrights, trademarks, trade names, trade secret
or patent rights, if any, therein shall reside in Traffic Domination
or its Third-Party Licensors, as the case may be. Licensee further
acknowledges that (i) the Licensed Materials are protected by
copyright and other intellectual property laws and by international
treaties, and (ii) Licensee has no rights in the Licensed Materials,
except those expressly granted by this Agreement.
4.2 Protection.
Licensee will take all reasonable measures requested by Traffic
Domination, and/or as otherwise provided in this Agreement,
to protect the Licensed Materials from any use, reproduction,
publication, disclosure or distribution, except as specifically
authorized by this Agreement.
5. Delivery.
Traffic
Domination shall provide Licensee with the following materials
in connection with this Agreement:
(a) Licensed
Software. For each Licensee who plans to use or access specific
Licensed Software, Traffic Domination shall deliver accessto
Traffic Domination software via the Traffic Domination web site.
Such Licensed Software shall be delivered (or made available)
following identification of each such site by Licensee in writing
or by electronic mail.
(b) Documentation.
Following the licensing of specific Licensed Software pursuant
to the relevant Schedule(s), Traffic Domination shall deliver
one copy of any related Documentation (or make such Documentation
available electronically).
6. Rights and Responsibilities of Licensee.
6.1 Hardware;
Software; Alternative Systems. Licensee shall be exclusively
responsible for (i) providing all hardware and software (other
than any Licensed Software) necessary for installing, operating
and using any Licensed Software that is to be used at Licensee's
premises
6.2 Incident
Reporting. Licensee agrees to provide Traffic Domination with
data, documentation or other such evidence of Incident(s) that
it experiences during the term of this Agreement within one
business day of becoming aware of such Incident(s).
6.3 Rights
in Improvements. Notwithstanding any provision to the contrary
in this Agreement, Traffic Domination shall be the sole and
exclusive owner of, and Licensee hereby assigns and agrees to
assign to Traffic Domination all rights in (i) any changes,
modifications, upgrades or enhancements, in design, functionality
or otherwise, to the Licensed Materials, the Traffic Domination
Network, Traffic Domination's Internet sites and/or any successor
products, systems, networks or sites, and (ii) any of Licensee's
proposed or suggested changes, modifications, upgrades or enhancements,
in design, functionality or otherwise, to the Licensed Materials,
the Traffic Domination Network, Traffic Domination's Internet
sites and/or any successor products, systems, networks or sites,
without any recourse or obligation to Licensee. Licensee acknowledges
and agrees that Traffic Domination shall be under no obligation
to consider or implement any such changes, modifications, upgrades
or enhancements recommended or requested by Licensee.
6.4 Rights
in Data. Traffic Domination may use, reproduce and retain (i)
all data generated utilizing the Licensed Software that pertains
to the functionality or performance of the Licensed Software
or resides on the Traffic Domination Network or computer systems
operated for the benefit of Traffic Domination, (ii) all data
necessary or useful in assisting Traffic Domination in the diagnosis
or correction of Incidents, the measurement of software or service
usage, the protection or security of the Licensed Software or
the Traffic Domination Network (or password protected areas
of Traffic Domination's Internet sites), the performance of
system or network maintenance, the preparation of billing statements
or the evaluation of its software or services, or any improvements,
upgrades or enhancements thereto, (iii) all data necessary or
useful in performing its obligations under this Agreement, providing
reports to Licensee or responding to Licensee requests, and
(iv) all data that Licensee is required to report or make available
to Traffic Domination pursuant to any of Traffic Domination's
other agreement(s) between Licensee and Traffic Domination.
6.5 Software
Interfaces. Traffic Domination may, from time to time, provide
certain consulting and other services to Licensee, which may
include, but not be limited to, software installation and integration
services. Traffic Domination and its Third-Party Licensors make
no representations or warranties regarding (i) the availability
of any interface between the Licensed Software and third-party
software and/or systems, (ii) the availability of access to
or by any specific provider of third-party software and/or systems,
or (iii) the timing of such interface availability. Further,
Licensee acknowledges and agrees that (i) Traffic Domination
and its Third-Party Licensors will in no way be responsible
for any Losses that may result from Licensee's use of any software
and/or systems obtained from any third-party provider, despite
the fact that such software and/or systems may interface with
the Licensed Software or that Traffic Domination may have provided
installation or integration services with respect to the same,
and (ii) Licensee shall maintain a direct, independent contractual
relationship with any such third-party provider.
6.6 User
Identification Numbers, Passwords and Digital Certificates.
Licensee's access to the Licensed Software may be dependent
upon a security access system that may require Licensee and/or
each Authorized User to specify a user login and password as
part of the sign-on procedure. Such security access system may
rely, among other things, on the issuance by Traffic Domination
(and/or a designated third party) of a digital certificate to
an Authorized User, which certificate may incorporate in whole
or in part an Authorized User's user login and/or password.
Licensee represents and warrants that each Authorized User registered
with Traffic Domination pursuant to such a system is (i) an
employee of Licensee, (ii) authorized to receive digital certificates,
and (iii) the individual identified as such on the user registration
form submitted to Traffic Domination. Licensee agrees to ensure
that any individual password is known only to the appropriate
Authorized User. In addition, Licensee agrees to immediately
notify Traffic Domination (a) if at any time an Authorized User
who has been issued an individual user identification number,
password and/or digital certificate (or has been registered
to receive any of the foregoing) ceases to be an Authorized
User for any reason, including as a result of such User no longer
being employed by Licensee, or (b) in the event of any loss,
theft or unauthorized disclosure or use of any user identification
number, password or digital certificate. Individual user identification
numbers, passwords and digital certificates may not be transferred
between Authorized Users, and Licensee shall ensure that such
transfers do not occur. Traffic Domination may provide functionality
within the Licensed Software such that Licensee is able to electronically
compare its list of Authorized Users with such a list maintained
by Traffic Domination. To the extent such functionality is provided,
Licensee shall conduct periodic comparisons of the separately
maintained lists, and Licensee shall immediately notify Traffic
Domination of any discrepancy revealed by any such comparison.
Traffic Domination reserves the right at any time and from time
to time to change and/or revoke user identification numbers,
passwords and digital certificates issued to Licensee and/or
any Authorized User.
6.7 Security
and Data Retention Procedures. Where Licensee data or other
materials reside on a Traffic Domination system, Traffic Domination
will use reasonable care to avoid loss, alteration or improper
access to Licensee's data and other materials. Traffic Domination
may copy, display, store and internally distribute such data
and other materials for the purposes of the operation of the
Licensed Software. Licensee shall be responsible for implementing
appropriate procedures to protect its data and other materials
and shall be responsible for security breaches caused by its
employees, agents or contractors, including, without limitation,
any access or entry into any Traffic Domination or third party
system not covered by this Agreement. Such procedures may include,
but are not limited to, encrypting material prior to its transmission,
utilizing commercially available virus checking programs designed
to prevent the transmission and receipt of viruses and other
destructive code, implementing appropriate disaster recovery
and back-up procedures, and implementing appropriate procedures
to prevent disclosure of data and other materials to a party
other than the intended recipient. Licensee shall use reasonable
care to prevent third parties from gaining access to the Traffic
Domination Network or password protected portions of Traffic
Domination's Internet sites through Licensee's systems. Licensee
is solely responsible for the back-up and restoration of its
data and other materials. Licensee shall comply with all reasonable
security policies and procedures established by Traffic Domination
and communicated to Licensee with respect to the Licensed Software
and/or the Traffic Domination Network or Internet sites. Traffic
Domination shall have the right to remove any material, the
content of which Traffic Domination deems to be in violation
of law or any term or condition of this Agreement (including
any Schedule). Notwithstanding the foregoing, Traffic Domination
shall have no obligation to remove, screen, police, edit or
monitor any data or other material generated by Licensee or
its employees, agents, contractors, representatives or affiliates.
6.8 Data
Reporting. If the Licensed Software is designed to facilitate
the reporting or other provision of data to Traffic Domination,
Licensee shall be responsible for (i) the accuracy and completeness
of data input, and (ii) assuring that the proper Licensee personnel
review and approve any notification, information or request
submitted to Traffic Domination via the Licensed Software prior
to its transmission. Traffic Domination is hereby authorized
to conclusively rely on the accuracy and genuineness of any
information conveyed to Traffic Domination using such Licensed
Software, and shall be under no obligation to authenticate the
source of, or verify the accuracy of, any such information.
6.9 Indemnification.
Notwithstanding the provisions of Section 12.1 hereof, Licensee
shall indemnify and hold harmless Traffic Domination, its Third-Party
Licensors and each of the foregoing entities' affiliates, partners,
officers, employees, directors, agents, contractors, representatives,
successors and assigns, as such, from and against any Losses
which arise out of or result from any third-party claim relating
to (i) Licensee's use of the Licensed Materials in conjunction
with any third-party system as referenced in Section 6.5 of
this Agreement, (ii) any act or omission of Licensee in connection
with this Agreement or the Licensed Software (except to the
extent that Traffic Domination or its Third-Party Licensors
caused such Losses), (iii) any software, information or data
provided by or on behalf of Licensee, (iv) any breach of Section
3.4, 3.6, 6.6, 6.7 or 6.8 of this Agreement, and/or (v) any
defamatory or illegal, or allegedly defamatory or illegal, material
transmitted by Licensee (or any person or entity that gains
access to the Licensed Software through Licensee or pursuant
to this Agreement).
7. Support.
7.1 Traffic
Domination Support. During the hours posted on the applicable
Traffic Domination Network or the applicable Traffic Domination
Internet site or otherwise provided to Licensee from time to
time, Traffic Domination personnel will be available to Licensee
via the Traffic Domination Support Site to respond to technical
questions regarding the functionality of the Licensed Software,
and to help Licensee identify, verify and resolve Incidents
occurring on, or with respect to, the Licensed Materials. In
addition, Traffic Domination shall provide the installation
services (if any) specified in the Schedule(s) hereto. Such
services shall constitute the sole and exclusive support services
to be provided by Traffic Domination to Licensee under this
Agreement. Unless otherwise agreed by Traffic Domination in
writing, Licensee shall only use the most recent version of
the Licensed Materials provided (or otherwise made available)
by Traffic Domination, and will follow Traffic Domination's
instructions concerning the return or destruction of any prior
versions of the Licensed Materials. Licensee agrees to provide
Traffic Domination with remote access to the Licensed Software
and related software to the extent necessary to enable Traffic
Domination to (i) determine the version of the Licensed Materials
being utilized by Licensee, and (ii) download to Licensee the
current version of the Licensed Materials. This Section shall
not be interpreted to require Traffic Domination to (i) develop
and release any upgrades or enhancements to the Licensed Materials,
or (ii) provide Licensee with any upgrade or enhancement that
Traffic Domination decides, in its sole discretion, to make
available as a separately priced item or only on a limited basis.
7.2 Licensee
Contacts. With respect to each Schedule entered into pursuant
to this Agreement, Licensee shall assign one technical contact
who shall have primary responsibility for all communications
with Traffic Domination's technical support representatives
with respect to the subject matter of such Schedule. Such contacts
shall have sufficient technical expertise, training and experience
for Licensee to perform its obligations hereunder.
8. Fees, Taxes and Billing.
8.1 Subscription
Fees. Licensee agrees to pay the connection charges and other
charges (if any) for the Licensed Materials ordered or used
by Licensee, as set forth on the Traffic Domination licensed
software rate sheet (or product-specific rate sheet) made available
to Licensee or posted on the applicable Traffic Domination Network
or applicable Internet site. Traffic Domination may increase
or decrease such charges from time to time and Licensee agrees
to pay any such adjusted charges; provided that notice of such
adjustment shall be provided by posting on the applicable Traffic
Domination Network or applicable Internet site, or otherwise
provided to Licensee, (i) on or before its effective date with
respect to fees which constitute pass-through charges from Third-Party
Licensors or other vendors, and (ii) at least twenty (20) days'
before its effective date with respect to all other charges.
In addition, Licensee agrees to pay Traffic Domination any applicable
charges set forth in Part II to the Schedule(s) to this Agreement.
8.2 Taxes.
In addition to the Subscription Fees, Licensee shall pay or
reimburse Traffic Domination on demand for all current and future
federal, state and local taxes imposed on the possession or
use of the Licensed Software, any services provided hereunder
and any fees payable hereunder, excluding, however, any taxes
assessed on Traffic Domination's net income.
8.3 Billing.
Except as expressly provided in the relevant Schedule(s), Licensee
will be billed monthly in arrears for Subscription Fees at the
address set forth in the Traffic Domination Software Subscription
Form (or the relevant Traffic Domination customer change request
form). Payment is due upon receipt of invoice. Accounts not
paid within thirty (30) days of the date of the invoice shall
be deemed delinquent and are subject to late charges at a variable
annual rate that is three (3) percentage points above the prime
rate published in the Wall Street Journal, or at the maximum
rate permitted by law, whichever is less, commencing on the
date of the invoice, plus all costs of collection, including,
without limitation, reasonable attorneys' fees. Traffic Domination
reserves the right to suspend Licensee's access to the Traffic
Domination Network, Traffic Domination's password protected
Internet sites or any Licensed Software if Licensee's account
is delinquent.
9. Confidentiality.
9.1 Protection.
All Proprietary Information disclosed by one party to the other
in the course of performing under this Agreement or to which
the other gains access in connection with this Agreement shall
be deemed to be the property of the disclosing party, or the
appropriate Third-Party Licensor (or other third-party owner),
as the case may be. The receiving party agrees to (i) receive
such Proprietary Information in confidence, (ii) use reasonable
efforts to maintain the confidentiality of such Proprietary
Information and not disclose such Proprietary Information to
third parties (except for the receiving party's representatives,
agents and contractors who have a need to know, are under a
duty of non-disclosure with respect to such information, and
are acting for the sole benefit of the receiving party), which
efforts shall accord such Proprietary Information at least the
same level of protection against unauthorized use and disclosure
that the receiving party customarily accords to its own information
of a similar nature, (iii) use or permit the use of such Proprietary
Information solely in accordance with the terms of this Agreement,
and (iv) promptly notify the disclosing party in writing of
any actual or suspected loss or unauthorized use, disclosure
or access of the disclosing party's Proprietary Information
of which it becomes aware. The terms and conditions of this
Agreement (as well as all information regarding the negotiation
of this Agreement) shall be deemed to be the Proprietary Information
of both parties. If Licensee is a government agency, Licensee
agrees that it shall comply fully with the Trade Secrets Act
(18 U.S.C. §1905) or other applicable law with regard to
the Proprietary Information. Each party agrees that it shall
abide by and reproduce and include any restrictive legend or
proprietary rights notice that appears in or on any Proprietary
Information of the other party or any Third-Party Licensor (or
other third-party owner) that it is authorized to reproduce.
Each party also agrees that it shall not remove, alter, cover
or distort any trademark, trade name, copyright or other proprietary
rights notices, legends, symbols or labels appearing on or in
any Proprietary Information of the other party or any Third-Party
Licensor (or other third-party owner).
9.2 Exclusions.
The restrictions on use and disclosure set forth above shall
not apply when, and to the extent that the Proprietary Information:
(i) is or becomes generally available to the public through
no fault of the receiving party (or anyone acting on its behalf);
(ii) was previously rightfully known to the receiving party
free of any obligation to keep it confidential; (iii) is subsequently
disclosed to the receiving party by a third party who may rightfully
transfer and disclose such information without restriction and
free of any obligation to keep it confidential; (iv) is independently
developed by the receiving party or a third party without reference
to the disclosing party's Proprietary Information, or (v) is
required to be disclosed by the receiving party as a matter
of law, provided that the receiving party uses all reasonable
efforts to provide the disclosing party with at least ten (10)
days' prior notice of such disclosure and the receiving party
discloses only that portion of the Proprietary Information that
is legally required to be furnished pursuant to the opinion
of legal counsel of the receiving party. Notwithstanding the
foregoing, neither party shall disclose, or permit the disclosure
of, the terms or conditions of this Agreement without the prior
written consent of the other party, except (A) as provided in
Section 9.2(v) above, (B) to the extent necessary to permit
the exercise of its rights or the performance of its obligations
under this Agreement, or (C) to seek advice from its attorneys,
accountants or other professional advisors.
10. Publicity; Marks.
10.1 Approval
Procedure. Each party will submit to the other party for its
prior approval, which approval may be withheld at such party's
sole discretion, that portion of any press release, Internet
posting, marketing, advertising, promotional or similar materials
referencing the other party and/or its Marks in connection with
this Agreement (the "Materials"). Once approved, such
Materials may be reused until such approval is withdrawn pursuant
to Section 10.2. Notwithstanding the foregoing, the parties
agree that statements of fact made in routine correspondence
with specific customers shall not constitute "Materials."
10.2 Withdrawal
of Approval. The rights granted in Section 10.1 may be withdrawn
at any time by the granting party upon reasonable prior written
notice. In the event of such withdrawal, existing inventories
of tangible Materials may be depleted.
10.3 Exclusion.
Notwithstanding the foregoing provisions of this Section 10
and subject to the provisions of Section 9, either party may
provide disclosures as required by law or as reasonably advised
by legal counsel without the consent of the other party, and
in such event prompt notice thereof shall be provided to the
other party.
10.4 Ownership
of Marks. Each party acknowledges and agrees that (i) the other
party's Marks are and shall remain the sole property of the
other party, (ii) nothing in this Agreement shall confer in
a party any right of ownership or license rights in the other
party's Marks, and (iii) neither party shall register the other
party's Marks in any jurisdiction. In addition, Licensee acknowledges
and agrees that (i) the Marks of Third-Party Licensors are and
shall remain the sole property of such Third-Party Licensors,
(ii) nothing in this Agreement shall confer in Licensee any
right of ownership or license rights in the Marks of Third-Party
Licensors, and (iii) Licensee shall not register the Marks of
Third-Party Licensors. Without limiting the generality of the
foregoing, Licensee agrees not to use or adopt any trade name,
trademark, logo or service mark which is so similar to Traffic
Domination's Marks or the Marks of Third-Party Licensors as
to be likely to cause deception or confusion, or which is graphically
or phonetically similar to any of Traffic Domination's Marks
or the Marks of Third-Party Licensors.
10.5 Legend
Requirement. Unless otherwise agreed in writing, when using
the other party's Marks pursuant to this Agreement, a party
shall take all reasonable measures required to protect the other
party's rights in such Marks, including, but not limited to,
the inclusion of a prominent legend identifying such Marks as
the property of the other party. In addition, Licensee shall
include a legend to the effect that its use of Traffic Domination's
name or Marks is for illustration purposes only and does not
represent an endorsement of Licensee's products or services
by Traffic Domination.
11. Warranty.
11.1 Warranty.
(a) Traffic
Domination warrants to Licensee that the media containing the
Licensed Software delivered to Licensee (if used) will be free
from defects in materials and workmanship under normal use for
a period of sixty (60) days from the date of original delivery
to Licensee pursuant to a Schedule hereto (the "Warranty
Period"). If a defect in such media occurs during the Warranty
Period, the defective media may be returned to Traffic Domination,
and Traffic Domination will replace such media without charge.
(b) Traffic
Domination warrants that the Licensed Software owned by Traffic
Domination shall perform substantially in accordance with the
Documentation during the Warranty Period. In the event any Licensed
Software provided pursuant to a Schedule hereto does not so
perform during the Warranty Period, Licensee shall, prior to
the expiration of the Warranty Period, document the instance(s)
of nonperformance to Traffic Domination in writing. Subject
to the foregoing, Traffic Domination will (at its option) either
repair or replace such Licensed Software or terminate the applicable
Schedule(s) and provide Licensee a refund of any Subscription
Fees actually paid by Licensee for such Licensed Software for
the month prior to the written notification to Traffic Domination.
If requested by Traffic Domination, Licensee will return any
components of the related Licensed Materials and any copies
thereof in Licensee's possession.
(c) The
remedies set forth in this Section 11.1 shall be the sole and
exclusive remedies available to Licensee for any breach of warranty
under this Section 11.1.
11.2 THE
WARRANTIES SET FORTH IN SECTION 11.1 ARE THE SOLE AND EXCLUSIVE
WARRANTIES GIVEN BY Traffic Domination IN CONNECTION WITH THE
LICENSED MATERIALS, ANY COMPONENT THEREOF, ANY RELATED SERVICES
OR OTHERWISE UNDER THIS AGREEMENT. Traffic Domination AND ITS
THIRD-PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE
OF PERFORMANCE, AND ANY WARRANTIES OF NON-INFRINGEMENT. BETA
AND/OR PILOT VERSIONS OF THE LICENSED MATERIALS ARE PROVIDED
"AS IS."
11.3 Without
derogating the generality of the foregoing, Traffic Domination
and its Third-Party Licensors specifically do not warrant that
(i) the Licensed Software or any components thereof will perform
without interruption or error, or that all Incidents will be
corrected, (ii) the Licensed Materials (including the data and
other information contained therein) will meet Licensee's requirements,
(iii) the Licensed Software will operate in the configuration
which Licensee may select for use, or (iv) data or other information
generated by or contained in the Licensed Software will be accurate
or complete. Neither Traffic Domination nor its Third-Party
Licensors shall be responsible for the accurate or complete
transmission of data or other materials. The warranties set
forth in Section 11.1 shall not apply to any irregularities,
errors, problems or defects arising from (i) modification of
the Licensed Software by any party other than Traffic Domination
or from accident, neglect, abuse, misuse or misapplication,
(ii) failure of Licensee to provide a suitable installation
and operating environment, including but not limited to, failure
to use supplies, materials, software and hardware platforms
that meet the specifications set forth in the Documentation,
(iii) Licensee's incorporation, attachment or engagement of
any attachment, feature, program or device to the Licensed Software,
if the Licensed Software would have conformed to the warranty
set forth in Section 11.1 but for such incorporation, attachment
or engagement, (iv) use of the Licensed Software outside the
scope of its intended purpose, as described in the Documentation,
or (v) Licensee's failure to incorporate any update previously
released by Traffic Domination that corrects such item. Traffic
Domination reserves the right to (i) modify any Licensed Materials
or substitute any materials contained therein so long as the
new materials do not materially affect the functionality of
the Licensed Software, and (ii) discontinue the licensing and/or
support of any Licensed Materials.
12. Limitation of Liability.
12.1 EXCEPT
WITH RESPECT TO ANY BREACH OF SECTION 3 OR SECTION 9 HEREOF,
IN NO EVENT SHALL EITHER PARTY, OR ANY THIRD-PARTY LICENSOR,
OR THEIR RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES,
DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS
OR ASSIGNS, AS SUCH, BE LIABLE TO THE OTHER PARTY OR ANYONE
CLAIMING UNDER OR THROUGH THE OTHER PARTY FOR ANY PUNITIVE,
EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED MATERIALS
OR ANY RELATED SOFTWARE, SERVICES OR INFORMATION, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS (EXCLUDING Traffic
Domination'S PROFITS UNDER THIS AGREEMENT), INTEREST, REVENUE,
DATA OR USE, OR INTERRUPTION OF BUSINESS, INCURRED BY THE OTHER
PARTY OR ANY THIRD PARTY, WHETHER BASED UPON CONTRACT, TORT
(INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND
STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, Traffic Domination
AND ITS THIRD-PARTY LICENSORS, AND THEIR RESPECTIVE AFFILIATES,
PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS,
REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH, SHALL HAVE
NO LIABILITY FOR LOSSES RESULTING FROM UNAUTHORIZED USE OF THE
LICENSED MATERIALS BY LICENSEE OR THOSE GAINING ACCESS TO THE
LICENSED MATERIALS, THE Traffic Domination NETWORK OR Traffic
Domination'S PASSWORD PROTECTED INTERNET SITES AS A RESULT OF
LICENSEE'S ACTS OR OMISSIONS.
12.2 INDEPENDENT
OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY
OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT,
IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF Traffic
Domination AND ITS THIRD-PARTY LICENSORS (AND THEIR RESPECTIVE
AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS,
CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH),
TO LICENSEE OR ANY THIRD PARTY CLAIMING UNDER OR THROUGH LICENSEE
FOR ANY AND ALL LOSSES, INCLUDING, WITHOUT LIMITATION, CAUSES
OF ACTION AND CLAIMS BASED UPON BREACH OF CONTRACT, TORT (INCLUDING,
BUT NOT LIMITED TO, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY),
BREACH OF WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED MATERIALS
OR ANY RELATED SOFTWARE, SERVICES, OR INFORMATION, EXCEED THE
TOTAL SUBSCRIPTION FEES RECEIVED BY Traffic Domination FROM
LICENSEE UNDER THE RELEVANT SCHEDULE DURING THE CONSECUTIVE
TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF
THE FIRST SUCH EVENT GIVING RISE TO SUCH LIABILITY .
12.3 Traffic
Domination AND LICENSEE EXPRESSLY ACKNOWLEDGE AND AGREE THAT
THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN (i) REPRESENT
THE PARTIES' AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN
THE PARTIES (INCLUDING, WITHOUT LIMITATION, THE POSSIBILITY
THAT A REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL
LOSS) AND THAT THE AMOUNTS PAYABLE TO Traffic Domination PURSUANT
TO THIS AGREEMENT REFLECT SUCH ALLOCATION OF RISK, WITHOUT WHICH
Traffic Domination WOULD NOT HAVE BEEN WILLING TO ENTER INTO
THIS AGREEMENT, AND (ii) FORM AN ESSENTIAL BASIS OF THE BARGAIN
BETWEEN THE PARTIES.
13. Intellectual Property Indemnity.
13.1 Notwithstanding
the provisions of Section 12.1 hereof, Traffic Domination shall
indemnify and hold harmless Licensee and its affiliates, partners,
officers, employees, directors, agents, contractors, representatives,
successors and assigns, as such, from and against any Losses
which arise out of or result from any third-party claim that
Traffic Domination does not have sufficient right, title or
interest in the Licensed Software or the Documentation to enter
into this Agreement or that the Licensed Software or Documentation
owned by Traffic Domination violates a United States patent
in existence on the date of delivery, copyright, trademark,
trade secret or other United States intellectual property right
of any third party.
13.2 In
the event that any such claim is made, or in Traffic Domination's
opinion is likely to be made, Traffic Domination reserves the
right, in its sole discretion, (i) to procure for Licensee the
right to continue to use the Licensed Software and the Documentation,
(ii) to replace the Licensed Software or the Documentation to
avoid infringement, (iii) to modify the Licensed Software or
the Documentation to avoid infringement, or (iv) to terminate
the relevant license(s) and Schedule(s) to this Agreement without
further cost, charge, liability or penalty to either party relating
to such termination.
13.3 Traffic
Domination and its Third-Party Licensors shall have no obligation
to the extent that any claim of infringement is based upon Licensee's
(i) use of the Licensed Software or the Documentation in violation
of this Agreement, (ii) modification or marking of the Licensed
Software or the Documentation, or any portion thereof, where,
in the absence of such modification or marking, the Licensed
Software or Documentation would not be infringing (unless such
modification or marking has been specifically authorized in
writing by Traffic Domination), (iii) use of the Licensed Software
or the Documentation in combination with other software, documentation,
hardware or data, if use without such software, documentation,
hardware or data would not be infringing, (iv) use of a superseded
version of the Licensed Software or the Documentation if infringement
could have been avoided by the use of the current version, (v)
use of the Licensed Software or the Documentation in practicing
any infringing process, (vi) use of the Licensed Software in
a manner for which it was not designed, (vii) activities after
Traffic Domination has notified Licensee that Traffic Domination
believes such activities may result in such infringement, (viii)
designs, specifications or instructions, or (ix) use of any
marks other than Traffic Domination's Marks pursuant to Section
10.1.
13.4 THE
PROVISIONS SET FORTH IN THIS SECTION 13 SHALL BE LICENSEE'S
SOLE AND EXCLUSIVE REMEDIES AND Traffic Domination'S SOLE LIABILITIES
AND OBLIGATIONS FOR ANY CLAIMS BROUGHT AGAINST LICENSEE BASED
UPON INTELLECTUAL PROPERTY INFRINGEMENT, WHETHER UPON THE THEORY
OF WARRANTY, INDEMNITY OR OTHERWISE.
14. Indemnification Procedures and Subrogation.
14.1 Procedures.
Promptly after receipt by any person entitled to indemnification
under this Agreement (the "Indemnified Party") of
notice of a claim, or of the commencement (or threatened commencement)
of any civil, criminal, administrative or investigative action
or proceeding involving a claim, in respect of which the Indemnified
Party will seek indemnification pursuant to this Agreement,
the Indemnified Party shall promptly notify the party that is
obligated to provide such indemnification (the "Indemnifying
Party") of such claim in writing. No failure to so notify
the Indemnifying Party shall relieve the Indemnifying Party
of its obligations under this Agreement except to the extent
that it can demonstrate damages or prejudice attributable to
such failure. Except as provided in Section 14.2, the Indemnifying
Party shall be entitled to have sole control over the response
to, defense and settlement of such claim, provided that, within
fifteen (15) days after receipt of such written notice, the
Indemnifying Party notifies the Indemnified Party of its election
to so assume full control. In the event the Indemnifying Party
does elect to so assume control: (i) the Indemnified Party shall
be entitled to participate in the response to such claim and
to employ counsel at its own expense to assist in the handling
of such claim, (ii) the Indemnifying Party shall obtain the
prior written approval of the Indemnified Party (which approval
shall not be unreasonably withheld or delayed) before entering
into any settlement of such claim or ceasing to defend against
such claim if such settlement or cessation would cause injunctive
relief to be imposed against the Indemnified Party, and (iii)
the Indemnifying Party shall promptly reimburse the Indemnified
Party for any legal expenses reasonably incurred by the Indemnified
Party in connection with the defense of such claim prior to
the Indemnified Party's receipt of the Indemnifying Party's
notice of its election to assume full control over the response
to such claim. After notice by the Indemnifying Party to the
Indemnified Party of its election to assume full control, the
Indemnifying Party shall not be liable to the Indemnified Party
for any further legal expenses incurred by such Indemnified
Party in connection with the defense of that claim. If the Indemnifying
Party does not assume sole control over the response to such
claim as provided in this Section, the Indemnifying Party may
participate in such response and the Indemnified Party shall
have the right to respond to and defend the claim in such manner
as it may deem appropriate, at the reasonable cost and expense
of the Indemnifying Party, who shall be bound by any settlement.
The Indemnifying Party shall promptly reimburse the Indemnified
Party for such costs and expenses.
14.2 Exclusion.
Notwithstanding anything set forth in Section 14.1 to the contrary,
in the event an Indemnified Party reasonably believes and so
notifies the Indemnifying Party in writing that the applicable
claim, even if fully indemnified for, is reasonably likely to
have a material adverse effect on the Indemnified Party, then
the Indemnifying Party shall not have the right to control the
response to, defense and settlement of such claim, but shall
have the right to employ separate counsel at its own expense
to assist in the handling of such claim by the Indemnified Party.
In such an event, (i) the Indemnified Party and its counsel
shall consult, wherever reasonably practicable, with the Indemnifying
Party and its counsel with respect to the status of the claim
and any related litigation or proceedings, and (ii) the Indemnified
Party shall bear the expense of its counsel.
14.3 Settlement.
Where an Indemnifying Party has been given notice of a claim
and assumed its responsibility to defend with respect thereto,
the Indemnifying Party shall not be required to indemnify an
Indemnified Party for any amount paid or payable by such Indemnified
Party in the settlement of any claim which was agreed to without
the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed.
14.4 Subrogation.
In the event that an Indemnifying Party shall be obligated to
indemnify an Indemnified Party pursuant to this Agreement, the
Indemnifying Party shall, upon payment of such indemnity in
full, be subrogated to all rights of the Indemnified Party with
respect to the claims and defenses to which such indemnification
relates.
15. Term and Termination.
15.1
Term. This Agreement and any Schedule(s) entered into hereunder
will remain in full force and effect until terminated as provided
herein. All Schedules entered into pursuant to this Agreement
shall be deemed terminated upon termination of this Agreement.
15.2
Termination If Authorized User requests cancellation at any
time during the Seven (7) Day Trial Period, the Agreement will
be immediately terminated and inaccessible.
If Authorized User requests cancellation at any time during
one of the Monthly Recurring Membership Periods, that user's
membership will remain open until the last day of the current
billing period, at which it will then be considered terminated.
Traffic Domination may cancel Authorized User's Seven (7) Day
Trial Period at any time for any reason, at which point Authorized
User's membership will be immediately terminated and inaccessible,
and Authorized User will receive refund of $1.
Traffic Domination may cancel Authorized User's Monthly Recurrding
Membership at any time, for any reason. However, Authorized
User's access to services and membership will remain open until
the last day of the current billing period, unless the reason
for cancellation is due to Traffic Domination's determination
that Authorized User is breaching this Agreement in some manner,
or acting in some manner that Traffic Domination deems to be
unacceptable, in which case Authorized User's access to services
and membership will be immediately terminated and inaccessible,
with no prorated refund of remaining fees.. Traffic Domination
reserves the sole right to determine how acceptable Authorized
User's behavior is.
15.3
Notification of Termination. Authorized User may request cancellation
via the support link in the member section, or via support email
address. If cancellation request occurs during the 7-day trial
period, this cancellation will take effect immediately upon
receipt. Either party may cancel this Agreement at any time,
for any reason. If Authorized User wants to cancel, Authorized
User must request cancellation in writing, via the contact for
at http://trafficdomination.org/contact.php or by emailing directly
to Traffic Domination support. If Traffic Domination wishes
to terminate this agreement, such notification must be made
to the Authorized User's email address on file, which is the
email address Authorized User provided at time of signup.
15.4
Survival. Neither party shall have any continuing obligations
to the other upon the effective date of termination except that
(i) Licensee shall pay Traffic Domination all Subscription Fees
accrued and owing prior to the date of termination and any late
charges relating thereto, and (ii) any provisions of this Agreement
that contemplate their continuing effectiveness, including,
without limitation, Sections 3.6, 4, 6.3, 6.4, 6.5, 6.6, 6.7,
6.8, 6.9, 6.10, 8.2, 8.3, 9, 10, 11.2, 11.3, 12, 13, 14, 15.4,
15.5 and 16 of this Agreement and Paragraphs 1 and 2 of Schedule
A hereto, shall survive any termination of this Agreement.
15.5
Certain Licensee Termination Obligations. Upon termination of
a Schedule, Licensee shall be obligated to (i) immediately cease
using the related Licensed Materials, and (ii) to destroy all
copies of the Licensed Materials delivered (or made available)
pursuant to Section 5 or made by Licensee that are the subject
of such Schedule. Upon request from Traffic Domination, Licensee
shall provide Traffic Domination with prompt written certification
of its compliance with the foregoing, executed by a duly authorized
officer of Licensee.
16. General Provisions.
16.1 Assignment.
This Agreement may not be assigned by Licensee to any other
person(s), firm(s), corporation(s) or other entities (by operation
of law or otherwise) without the prior express written approval
of Traffic Domination, and any attempt to assign without such
approval shall be void and shall be deemed to be a material
breach of this Agreement.
16.2 Notices.
Unless otherwise specified in this Agreement, all notices, requests,
demands, and other communications (other than routine operational
or billing communications) required or permitted hereunder shall
be in writing (with electronic mail or Traffic Domination postings
to the Traffic Domination Network or Traffic Domination Internet
sites deemed to be a "writing" for this purpose) and
shall be deemed to have been received by a party (i) when actually
received in the case of hand delivery against a signed receipt,
(ii) two (2) business days after being given to a reputable
overnight courier with a reliable system for tracking delivery,
(iii) when sent by confirmed facsimile, (iv) upon receipt, when
mailed by United States mail, registered or certified mail,
return receipt requested, postage prepaid, (v) one (1) day after
transmission by electronic mail with a copy sent by United States
mail within 48 hours of such transmission, or (vi) upon posting
by Traffic Domination to the applicable Traffic Domination Network
or the applicable Traffic Domination Internet site, and (i)
with respect to Traffic Domination, addressed to "Traffic
Domination Software Registrar" at the address and/or facsimile
number set forth on the Traffic Domination Software Subscription
Form, and (ii) with respect to Licensee, addressed to Licensee's
point of contact, address and/or facsimile number set forth
on the Traffic Domination Software Subscription Form (unless
Licensee is a Seller/Servicer, in which case communications
may be sent to the point of contact, address and/or facsimile
number ordinarily used by Traffic Domination for transmittal
to Licensee of bulletins issued in connection with Traffic Domination's
Selling and Servicing Guides). A party may from time to time
change its address, facsimile number or designee for notification
purposes by giving the other party prior written notice of the
new address, facsimile number or designee and the date upon
which such change will become effective.
Any Licensee
that is a Seller/Servicer shall also be deemed to have notice
of any matter published in Traffic Domination's Selling and
Servicing Guides and any bulletin, lender letter, announcement
or other communication issued thereunder.
In addition
to the provisions set forth in the first paragraph of this Section
16.2, bulletins issued pursuant to Section 16.6 of this Agreement
shall be deemed to have been received by Licensee (i) three
(3) days after being mailed by United States mail, postage pre-paid,
(ii) one (1) day after transmission by electronic mail, or (iii)
upon posting to the applicable Traffic Domination Network or
the applicable Traffic Domination Internet site.
16.3 Governing
Law; Severability. This Agreement shall be governed by and construed
solely and exclusively in accordance with the laws of the State
of New York, without reference to or application of its conflicts
of law principles. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid, void or unenforceable
by a court with jurisdiction over the parties to this Agreement,
such provision shall be deemed to be restated to reflect as
nearly as possible the original intention of the parties in
accordance with applicable law, and the remainder of this Agreement
shall remain in full force and effect.
16.4 Force
Majeure. Neither party shall be responsible for delays or failure
of performance (other than the payment of money) resulting from
acts beyond the reasonable control of such party. Such acts
shall include, but not be limited to, acts of God, strikes,
walkouts, riots, acts of war, epidemics, failure of vendors
to perform, governmental regulations, power failures, earthquakes,
or other disasters.
16.5 Headings.
The titles and headings of the various sections and paragraphs
in this Agreement are intended solely for convenience of reference
and are not intended to explain, modify or place any construction
or limitation upon any of the provisions of this Agreement.
16.6 Issued
Bulletins; Amendments. Traffic Domination may issue hard-copy
bulletins or electronic bulletins (via electronic mail or posted
on the applicable Traffic Domination Network or the applicable
Traffic Domination Internet site), from time to time, amending
this Agreement (or any Schedule(s) hereto) on a prospective
basis, effective on the date specified by Traffic Domination
in the bulletin. Each bulletin shall be issued at least twenty
(20) days before its effective date, except for bulletins relating
to software and other materials provided by Third-Party Licensors,
which may be issued at any time prior to their effective date.
Licensee shall have the right to reject any bulletin by providing
written notice to Traffic Domination within fifteen (15) days
after receipt of such bulletin. In the event that Licensee rejects
any bulletin, Traffic Domination shall be entitled to terminate
this Agreement or any Schedule(s) hereto, effective either (i)
as of the effective date of such bulletin, (ii) upon receipt
by Licensee of Traffic Domination's termination notice, or (iii)
upon the termination date set forth in such notice, whichever
is later. Unless Licensee provides such rejection notice within
the aforementioned fifteen (15) day period, Licensee shall be
deemed to have consented to such amendments and such amendments
shall form part of this Agreement (or any Schedule(s) hereto)
as of the effective date of such bulletin. Otherwise, the terms
of this Agreement (including any Schedule(s) hereto) may be
amended solely by a writing expressly purporting to create an
amendment or supplement to this Agreement and executed by a
duly authorized representative of each party to be bound thereby.
This Agreement (including the Schedule(s) hereto) may not be
amended by any purchase order or other written instrument submitted
by Licensee, whether or not formally rejected by Traffic Domination.
Terms or conditions contained in a Schedule that modify or supplement
this Agreement shall only take precedence over this Agreement
with regard to the subject matter of such Schedule.
16.7 Entire
Agreement. Except as expressly provided in this Agreement, no
representations or statements of any kind made by either party
that are not expressly stated herein or in any amendment or
Schedule hereto shall be binding on such party. The parties
agree that this Agreement (including the Schedule(s) hereto)
shall constitute the complete and exclusive statement of the
agreement between them, and supersedes all prior or contemporaneous
communications, proposals or agreements, oral or written, relating
to the subject matter hereof. Without limiting the generality
of the foregoing, Licensee acknowledges and agrees that this
Agreement supersedes and replaces any currently outstanding
agreement(s) between Licensee and Traffic Domination Any schedules
entered into pursuant to such agreement(s) shall be deemed to
be Schedules under this Agreement without further action on
the part of either party.
In addition,
without limiting the generality of the foregoing, Licensee acknowledges
and agrees that Traffic Domination may, from time to time, provide
Licensee with marketing materials and other information (including,
but not limited to, press releases, Internet postings, responses
to written and telephonic inquiries, fact sheets, periodic reports,
product support information and other customer communications
materials) relating to the Licensed Materials and other products
or services and that such materials or other information will
not be deemed to (i) include any representation or warranty
by Traffic Domination or its Third-Party Licensors unless such
materials or information expressly provide that a particular
statement is a representation or a warranty for purposes hereof,
(ii) form part of this Agreement unless such materials or information
(or this Agreement) expressly provide otherwise, or (iii) constitute
an inducement for Licensee to enter into or extend the term
of this Agreement.
16.8 Jurisdiction.
Any and all disputes between the parties that cannot be settled
by mutual agreement shall be resolved solely and exclusively
in the courts located within the State of New York, and Licensee
hereby consents to the jurisdiction of such courts and irrevocably
waives any objections thereto, including without limitation,
on the basis of improper venue or forum non conveniens.
16.9 Third-Party
Beneficiaries. The parties acknowledge and agree that applicable
Third-Party Licensors are intended beneficiaries of this Agreement
and shall be entitled to rely upon and directly enforce the
terms and conditions hereof. Except as provided in the foregoing
sentence, nothing in this Agreement is intended to, or shall,
create any third-party beneficiaries, whether intended or incidental,
and neither party shall make any representations to the contrary.
16.10 Restricted
Rights. If Licensee is any unit or agency of the U.S. Government,
then the following provision applies:
U.S. GOVERNMENT
RIGHTS
Use, duplication,
or disclosure by the U.S. Government is subject to restrictions
set forth in this Agreement and as provided in DFARS 227.7202-1(a)
and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT
1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14
(ALT III), as applicable. Traffic Domination, PO Box 409, New
York, NY 10276
16.11 Facsimiles;
Other Documents. The parties acknowledge and agree that copies
of executed documents received via facsimile transmission shall
be deemed to be originals for all purposes. The parties further
acknowledge and agree to the validity and enforceability of
Traffic Domination's shrink-wrap, click-wrap and similar forms
of agreement which the parties may enter into from time to time
in connection with the Licensed Software, this Agreement and/or
other Traffic Domination products and services.
16.12 No
Implied Waiver. No term, provision or clause of this Agreement
shall be deemed waived and no breach excused unless such waiver
or consent shall be in writing and executed by a duly authorized
representative of the party to be bound thereby. Any consent
by any party to, or waiver of, a breach by the other, whether
express or implied, shall not constitute a consent to, waiver
of, or excuse for any different or subsequent breach.
16.13 Independent
Parties. The parties are independent contractors. Nothing in
this Agreement shall be construed to make the parties partners,
joint venturers, representatives or agents of each other, nor
shall either party so represent to any third person. No employer-employee
relationship is intended to be created by this Agreement.
SCHEDULE
A
PRICING
Pricing
for Traffic Domination is as follows. Pricing is subject to
change as set out in the Traffic Domination License.
Monthly
Payment Subscription of $100 will be charged to credit card
eight (8) days after submission of signed subscription form,
unless customer requests cancellation before the end of that
7 day trial period. That same Monthly Payment charge will be
charged each consecutive month until the customer requests cancellation
of membership. All requests must come through email, through
the contact form at this URL: https://trafficdomination.org/contact.php
Traffic
Domination may add new plans in the future, which Subscriber
is not obligated to switch to. However, Subscriber may switch
plans on request in writing to Traffic Domination. Plan requests
will be honored at the time of next billing cycle.
Traffic
Domination reserves the right to make promotional discounts
available for new or renewing customers that may supersede the
prices set out above.
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