TRAFFIQ End User Agreement
This TRAFFIQ End User Agreement (this “Agreement”) is entered into by and between End User, including without limitation, the entity(s) End User represent (if any) as set forth in your Registered Account (hereinafter “End User”) and TRAFFIQ, Inc., a Delaware corporation with a principal address of 462 7th Avenue, 21st Floor, New York, New York 10018 (“TRAFFIQ”). End User and TRAFFIQ together may collectively be referred to herein as the “Parties” and each individually as a “Party.” This Agreement sets forth the terms and conditions pursuant to which the Parties will conduct business through the TRAFFIQ Marketplace (as defined herein).
Section 1. End User Agreement.
By using the TRAFFIQ Marketplace, End User agrees to be bound by and to comply with this Agreement. TRAFFIQ reserves the right, at its sole discretion, to change, modify or otherwise alter this Agreement at any time. Unless otherwise indicated, amendments will become effective immediately. Please review this Agreement periodically. End User’s continued use of the Site following the posting of changes and/or modifications will constitute End User’s acceptance of the revised Agreement and the reasonableness of these standards for notice of changes.
Section 2. Disclaimer Of Warranties; Limitation Of Liability.
- The TRAFFIQ Marketplace may contain inaccuracies and typographical errors. TRAFFIQ does not warrant the accuracy or completeness of the materials or the reliability of any advice, opinion, statement or other information displayed or distributed through the TRAFFIQ Marketplace. End User expressly understands and agrees that: (i) End User’s use of the TRAFFIQ Marketplace, including any reliance on any such opinion, advice, statement, memorandum, or information contained herein, shall be at End User’s sole risk; (ii) the TRAFFIQ Marketplace is provided on an "as is" and "as available" basis; (iii) except as expressly provided herein TRAFFIQ disclaims all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement; (iv) TRAFFIQ makes no warranty with respect to the results that may be obtained from the TRAFFIQ Marketplace, the products or services advertised, offered or provided or merchants involved; (v) any material downloaded or otherwise obtained through the use of the TRAFFIQ Marketplace is done at End User’s own discretion and risk; and (vi) you will be solely responsible for any damage to End User’s computer system or for any loss of data that results from the download of any such material.
- End User explicitly acknowledges that all business transactions with Buyers that are conducted by End User through the TRAFFIQ Marketplace shall be at End User’s sole discretion and complete liability regarding the subject matter of the business transaction so conducted.
- You understand and agree that under no circumstances, including, but not limited to, negligence, shall TRAFFIQ be liable for any direct, indirect, incidental, special, punitive or consequential damages that result from the use of, or the inability to use the TRAFFIQ Marketplace or materials or functions on any such TRAFFIQ Marketplace, even if you have been advised of the possibility of such damages. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, and accordingly, TRAFFIQ’s liability in such jurisdiction shall be limited to the maximum extent permitted by law.
Section 3. TRAFFIQ Marketplace Proprietary Rights.
Except as expressly provided, nothing within the TRAFFIQ Marketplace shall be construed as conferring any license under our or any third party's intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, End User acknowledge and agree that all content available through and used to operate the TRAFFIQ Marketplace and its services is protected by copyright, trademark, patent, or other proprietary rights of TRAFFIQ and its affiliates, licensors, and service providers.
End User agrees not to: (a) modify, alter, or deface any of the trademarks, service marks, trade dress (collectively "Trademarks") or other intellectual property made available by us in connection with the TRAFFIQ Marketplace; (b) hold itself out as in any way sponsored by, affiliated with, or endorsed by TRAFFIQ or any of our affiliates or service providers; (c) use any of the Trademarks or other content accessible through the TRAFFIQ Marketplace for any purpose other than the purpose for which TRAFFIQ or a Buyer have made it available, as appropriate, to End User; (d) defame or disparage TRAFFIQ, our Trademarks, or any aspect of the TRAFFIQ Marketplace; and (e) adapt, translate, modify, decompile, disassemble, or reverse engineer the TRAFFIQ Marketplace or any software or programs used in connection with it or its products and services.
Links to the TRAFFIQ Marketplace without TRAFFIQ’s express written permission are strictly prohibited. The framing, mirroring, scraping or data mining of the TRAFFIQ Marketplace or any of its content in any form and by any method is expressly prohibited.
Section 4. Indemnity.
By using the TRAFFIQ Marketplace, End User agrees to indemnify TRAFFIQ and affiliated entities and hold them harmless from any and all claims and expenses, including (without limitation) attorney's fees, arising from End User’s use of the TRAFFIQ Marketplace, End User’s use of the Products and Services, End User’s business dealings with third parties, including (without limitation) Buyers, or End User’s submission of ideas and/or related materials to TRAFFIQ or from any person's use of any ID, membership or password that End User maintains with any portion of the TRAFFIQ Marketplace, regardless of whether such use is authorized by End User.
Section 5. Place of Performance.
This TRAFFIQ Marketplace is controlled, operated and administered by TRAFFIQ from its offices in New York. TRAFFIQ makes no representation that the TRAFFIQ Marketplace is appropriate or available for use at other locations outside of the United States and access to them from territories where their contents are illegal is prohibited. If End User accesses the TRAFFIQ Marketplace from a location outside of the United States, End User is responsible for compliance with all local laws.
Section 6. No Joint Venture; No Derogation of Rights.
End User agrees that no joint venture, partnership, employment, or agency relationship exists between End User and TRAFFIQ as a result of this Agreement or End User’s use of the TRAFFIQ Marketplace. TRAFFIQ’s performance of this Agreement is subject to existing laws and legal process, and nothing contained herein is in derogation of TRAFFIQ’s right to comply with governmental, court and law enforcement requests or requirements relating to End User’s use of the TRAFFIQ Marketplace or information provided to or gathered by TRAFFIQ with respect to such use.
Section 7. Definitions.
Capitalized terms used throughout this Agreement that are not otherwise defined herein shall have the meanings set forth in Appendix A of the TRAFFIQ Publisher Agreement, which may be found online at http://www.TRAFFIQ.com/seller_agreement.
Section 8. Non-Disclosure; Data Ownership; Privacy.
- End User may, from time to time, sell its Inventory to a Participating Advertiser on terms that may be agreed upon by End User and such Participating Advertiser. The Participating Advertiser will be under no obligation to keep any information relating to any such transaction as Confidential Information, including without limitation, the Sales Price, the Inventory made available or the overall performance of the Inventory with respect to the Participating Advertiser’s campaign. Additionally, and notwithstanding anything to the contrary set forth above, End User understands and agrees that TRAFFIQ may (i) aggregate and use data and information about transactions occurring through the TRAFFIQ Marketplace, (ii) use data and information about single transactions occurring through the TRAFFIQ Marketplace (provided such information will not be capable of specifically identifying End User, unless End User agrees to be identified in advance), and/or (iii) use data about the performance of End User’s Inventory for its own use, and in order to deliver, disseminate, publicly broadcast, publicize and otherwise fully disclose such data and/or information to any person or entity and in any manner it determines in its sole discretion (provided such information will not be capable of specifically identifying End User, unless End User agrees to be identified in advance). Any such disclosures pursuant to the immediately preceding sentence shall not be deemed to be a breach of TRAFFIQ’s confidentiality obligations set forth in this Section 8.
- Notwithstanding anything contained in this Agreement to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a Party; (ii) was or becomes generally available to the public through no fault of the receiving Party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated Third Party free of any obligation of confidence. Additionally, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
- All personally identifiable information (PII) provided by individual web users who are informed that such information is being gathered solely on behalf of a Participating Advertiser pursuant to the Participating Advertiser’s posted privacy policy is the property of the Participating Advertiser, is subject to the Participating Advertiser’s posted privacy policy, and is considered Confidential Information. Any other use of such information must be agreed to in writing signed by both Parties. TRAFFIQ, TRAFFIQ’s Participating Advertisers, and End User shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws.
Section 9. Disclaimer of Warranties
ALL OF THE SERVICES AND TECHNOLOGY PROVIDED BY TRAFFIQ, INCLUDING WITHOUT LIMITATION THE TRAFFIQ MARKETPLACE, AS WELL AS ALL CONTENT, DATA, MATERIALS, AND DOCUMENTATION PROVIDED BY TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES PURSUANT TO THIS AGREEMENT AND IN FULFILLMENT OF ANY ORDER ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, UNLESS OTHERWISE SET FORTH IN THIS AGREEMENT. TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. TRAFFIQ DOES NOT WARRANT THAT THE SERVICES AND TECHNOLOGY PROVIDED BY TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE.
Section 10. Limitation of Liability
EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 OR DAMAGES THAT RESULT FROM A PARTY’S BREACH OF SECTION 8 OR INTENTIONAL MISCONDUCT BY A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY HERETO FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL TRAFFIQ’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION OR CLAIM WHATSOEVER EXCEED THE AGGREGATE FINAL SALES PRICES OF ALL PUBLISHER’S ORDERS HAVING AN ORDER RESOLUTION DATE WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY.
Section 11. Term and Termination
- This Agreement will be effective upon the earlier of the earlier of registration by the Publisher of the End User’s Registered Account or (ii) the signature of an authorized representative of both Parties hereto and shall continue for a period of one (1) year (the “Initial Term”), unless terminated earlier pursuant to the terms hereof. This Agreement shall be automatically renewed for subsequent one (1) year periods thereafter (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party gives the other written notice of cancellation at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term.
- Notwithstanding anything to the contrary set forth in this Agreement, including without limitation the provisions of Section 11(a) above, this Agreement may be sooner terminated as follows:
- Either Party may terminate this Agreement effective immediately if the other Party is in default of any material obligation under this Agreement, and such default shall have continued un-remedied for a period of ten (10) days following written notice of such default given by the non-defaulting Party to the defaulting Party;
- Either Party may terminate this Agreement, effective immediately, if the other Party is adjudicated bankrupt, becomes insolvent, voluntarily or involuntarily commences liquidation, if a receiver (temporary or permanent) for its property or a part thereof is appointed by a court of competent jurisdiction and not dismissed within 30 days after appointment, if it makes a general assignment for the benefit of creditors, or if execution is levied against substantially all of its property or which would have an adverse effect of the operation of its business and is not removed within thirty (30) days;
- Either party may terminate this Agreement, at any time, for any reason or no reason at all, upon forty five (45) days prior written notice is given to the other party.
- Upon the effective date of termination, all rights and obligations of the Parties will terminate except:
- Any indemnification obligation owed by a Party to the other Party hereto pursuant to this Agreement; and
- Each Party’s duty of confidentiality pursuant to this Agreement.
Section 12. Indemnification
- End User agrees to defend, indemnify and hold harmless TRAFFIQ, its Affiliates and their respective directors, officers, employees and agents from Losses incurred as a result of a third party claim, judgment and/or proceeding relating to or arising out of End User’s breach of this Agreement, including without limitation, display or delivery of any Ad in breach of this Agreement or the specifications of an Offer.
- TRAFFIQ agrees to defend, indemnify and hold harmless End User, its Affiliates and their respective directors, officers, employees and agents from Losses incurred as a result of a third party claim, judgment and/or proceeding relating to or arising out of TRAFFIQ’s breach of this Agreement.
- If any action will be brought against either Party (the “the Indemnified Party”) with respect to any allegation for which indemnity may be sought from the other Party (the “Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
Section 13. Miscellaneous
- This Agreement constitutes the entire agreement of the Parties with respect to the specific subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter hereof, except that, unless specifically contradicted by the terms of this Agreement, the TRAFFIQ End User Agree,emt shall govern your usage of the TRAFFIQ Marketplace and the Services (as defined therein).
- Where this Agreement is executed in paper format by the Parties, this Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document. By submitting an Offer on the TRAFFIQ Marketplace, End User agrees to be bound by all of the terms and conditions of this Agreement.
- End User represents and warrants that End User has all necessary permits, licenses, and clearances to sell the Inventory represented in an Offer and to otherwise perform its obligations under this Agreement, subject to the terms and conditions of this Agreement, including any applicable Policies. TRAFFIQ represents and warrants that it and/or its Participating Advertiser has all necessary permits, licenses and clearances to use the content contained in the Ad Materials and to otherwise perform its obligations under this Agreement, subject to the terms and conditions of this Agreement, including any applicable Policies. Each Party represents and warrants that by entering into this Agreement with the other, it is not breaching any duty or obligation to any third-party and that the person executing or otherwise agreeing to be bound this Agreement on behalf of it is the duly authorized representative of such Party and authorized to bind it to the terms of this Agreement. Each Party further represents and warrants that it will comply with at all times all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
- Neither Party will resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without TRAFFIQ’s prior written approval will be null and void, provided, however, that it is understood and agreed by End User that TRAFFIQ is purchasing the Inventory on behalf of its Participating Advertisers and will assign its rights with respect to the Inventory to the Participating Advertiser that has Accepted an Offer. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors and assigns. The failure by any Party to exercise or enforce any of the terms or conditions of this Agreement shall not constitute a waiver of that Party’s rights hereunder to enforce each and every term and condition of this Agreement.
- This Agreement shall be governed by the laws of the State of New York. TRAFFIQ and End User agree that any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in New York, and the Parties consent to the jurisdiction of such courts. No modification of this Agreement shall be binding unless in writing and signed by both Parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
- Any notice required to be delivered hereunder shall be delivered to End User via e-mail at the e-mail address specified by End User in its TRAFFIQ End User Account and to TRAFFIQ via e-mail to csr@traffiq.com.
- Neither Party shall be deemed in default hereunder, nor shall it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder and/or under any Order pursuant to the terms of this Agreement due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
- The Parties hereto are independent contractors. This Agreement shall not be construed to create a joint venture or partnership between the Parties. Neither Party shall be deemed to be an employee, agent or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other except as specifically set forth herein.
- The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties, and will not in any way affect the meaning or interpretation of this Agreement.