Terms of Service
TRAFFIC GENIE eCOMMERCE PLATFORM TERMS OF SERVICE
By signing up for the Traffic Genie eCommerce services (hereinafter referred to as the “Services”), you agree to the following Terms of Service:
These Terms of Service along with any applicable Service Agreement and/or Order Page (hereinafter these Terms of Services and any such Service Agreement and/or Order Page are collectively referred to as the “Agreement”) constitutes a legally binding contract between Traffic Genie, LLC (“Traffic Genie”) and the person or organization that submits an order for the Services, pays for Services, and/or utilizes the Services (“You” and/or “Client”). Traffic Genie reserves the right to change or modify the Services and/or any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to existing and/or future customers. Traffic Genie may make such changes or modifications to the Services and/or the terms and conditions contained in this Agreement without additional notice to Client whereby Client’s continued use of the Services following such any changes or modifications will constitute Client’s acceptance thereof.
- Eligibility Criteria.
Notwithstanding anything contained herein, this Agreement will not bind Traffic Genie unless Client meets the following Eligibility Criteria:
The Services and license thereof are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to children (persons under the age of 18). If Client is registering as a business entity, Client represents that they have the authority to bind the entity to this Agreement. Traffic Genie uses many techniques to verify the accuracy of the information Client provides when Client registers on the Traffic Genie website. If for any reason, Traffic Genie, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to Client, to revoke any and all licenses under this Agreement or to refuse to provide the Services under this Agreement to Client.
- The Services may include any one or more of the following elements, depending upon the package and options selected by the Client during the ordering process:
- Traffic Genie will provide Client with a limited license to use and receive the Services hereunder and Traffic Genie will further provide the Services ordered by the Client subject to all of the terms, conditions and limitations applicable to the Services that are set forth in the Agreement and on the Traffic Genie website.
- Client will pay for the Services at the price and in accordance with any fee schedule indicated upon Client’s ordering of the Services. Traffic Genie may change the prices for the Services at any time and any such change in prices will be effective after Traffic Genie posts the change on its website or otherwise provides notice to Client. All fees collected under this Agreement are fully earned when due and nonrefundable when paid except as expressly provided for in Section 6(E) and Section 6(F) below. All fees due under this Agreement must be paid in United States dollars via credit card or other payment method acceptable to Traffic Genie. Client agrees to provide its accurate name, mailing address, telephone and other contact information in Client’s profile and to update such contact details as they may change.
- The Services are either owned by Traffic Genie or licensed from a third party. In accordance with this Agreement and subject to the payment of applicable fees, Traffic Genie will provide certain support and other miscellaneous Services licensed by Client under this Agreement during the term of this Agreement.
- Traffic Genie reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to Client. Client agrees to receive administrative communications from Traffic Genie in regards to the Services, Client’s account, policy changes and system updates.
- Third-Party Licensors
- Ownership and License.
- The Services provided by Traffic Genie hereunder, and all worldwide intellectual property rights therein, are the exclusive property of Traffic Genie. All rights in and to the Services not expressly granted to Client in this Agreement are wholly reserved by Traffic Genie.
- Subject to the terms and conditions of this Agreement, Traffic Genie grants to Client a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Services.
- Client acknowledges that the Services and their structure, organization, and source code constitute valuable trade secrets of Traffic Genie. Accordingly, except as expressly allowed under this Agreement, Client will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Services; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Services to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services or (d) transfer its interest in and to the Services to any third party.
- Subject to the terms and conditions of this Agreement, Traffic Genie grants to Client a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce certain trademarks provided to Client by Traffic Genie under this Agreement (“Traffic Genie Marks”), solely for use in the display on those locations as designated by Traffic Genie in its sole discretion. Traffic Genie grants no rights in the Traffic Genie Marks other than those expressly granted in this Section. Client acknowledges Traffic Genie’ exclusive ownership of the Traffic Genie Marks. Client agrees not to take any action inconsistent with such ownership and Client agrees not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Traffic Genie Marks or in such a way as to create combination marks with the Traffic Genie Marks. At Traffic Genie’ request (in its sole discretion), Client will immediately discontinue any use and display of the Traffic Genie Marks. Client acknowledges and agrees that, except with respect to the trademark license granted herein in and to the Traffic Genie Marks, no licenses are granted by Traffic Genie to any other trademarks, service marks, or trade names owned by Traffic Genie, its parent, or affiliates.
- Certain additional features that Traffic Genie may make available to Client in conjunction with the Services may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions (“Additional Software”). Similarly, Traffic Genie may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions (“Additional Services”). Client agrees that Client will not use such Additional Software or Additional Services unless Client has agreed to the applicable terms and conditions, including but not limited to Client’s payment of additional fees as required.
- No Guarantee of Results.
- i. Shopping Cart and eCommerce software that facilitates the sale of products by the Client to customers on a website controlled by the Client;
- ii. Email marketing tools and services;
- iii. Online advertising tools and services;
- iv. Affiliate marketing tools and services; and
- v. Online website store builder services.
- i. Client acknowledges and agrees that the Services may include and/or may be provided, in some cases, by third party Licensors to Traffic Genie (hereinafter “Third Party Licensors”). For all Services that are provided by Third Party Licensors to Traffic Genie, Client agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the “Additional Terms and Conditions”). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Client acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Client further agrees that it will be subject to all Additional Terms and Conditions where Client elects to add services to its Services package.
- ii. Client acknowledges that Traffic Genie may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the Services. In the event that Traffic Genie changes Third Party Licensors, Traffic Genie may provide Client with notification of changes in Third Party Licensors and refer Client to information posted on Traffic Genie’ website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
Client acknowledges that Traffic Genie does not guarantee, imply, or predict any type of profit or response from the Services. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of Traffic Genie and for which Traffic Genie will bear no responsibility. Client irrevocably covenants, promises and agrees to indemnify Traffic Genie and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys’ fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Traffic Genie under this Agreement.
- Covenants and Acceptable Use.
- Client may use the Services only in accordance with this Agreement, applicable laws in the United States and the applicable laws of any other jurisdiction. Client agrees not to use the Services in any manner that violates the Traffic Genie Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time. In addition, Client agrees that it will not use the Services to:
- Client’s failure to comply with the covenants set forth in this Section of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination of this Agreement and the Services.
- The Services will commence on the date Client’s order for the Services is accepted by Traffic Genie (the “Effective Date”) and will thereafter continue on the basis of successive billing periods (with the first day of each billing period being a “Billing Date”) until terminated by either party in accordance with this Agreement. For each billing period, Traffic Genie will charge the Client’s Paypal Account on each Billing Date for (i) any non-refundable recurring subscription fees as well as any other annual or one-time fees due in advance for the billing period beginning on that date.
- Without limiting Traffic Genie’ other remedies, any amount that is not retrievable from Client’s PayPal Account when due will accrue a late fee at one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Traffic Genie may continue to submit charges on Client’s PayPal Account from time to time until all fees due are paid. Traffic Genie may suspend all or any portion of the Services at any time when fees are due and unpaid. For any amounts not paid when due Traffic Genie will be entitled to recover from Client losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses’ cost or other costs of any kind incurred by Traffic Genie hereunder.
- All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Client will be responsible for payment of all such taxes (other than taxes based on Traffic Genie’ income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or performance of the Services hereunder.
- Use of Client Data.
- i. Engage in any illegal or tortuous activity;
- ii. Violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
- iii. Sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material;
- iv. Use verbal, physical, written or other abuse (including threats of abuse or retribution) of any Traffic Genie customer, employee, member, or officer will result in immediate account termination; or
- v. Publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Traffic Genie in its sole discretion.
- Termination and Suspension.
- Client may terminate this Agreement at any time by giving Traffic Genie notice at least seven (7) days prior to the next Billing Date.
- Traffic Genie may also terminate this Agreement at any time by giving Client at least four (4) weeks prior notice. In addition, Traffic Genie may immediately terminate this Agreement, limit Client’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Client’s account or the Services, in whole or in part, and/or refuse to provide some or all of the Services functionality to Client, without notice, if in Traffic Genie’ sole discretion: (i) Client fails to pay any fees in accordance with this Agreement; (ii) Client breaches the covenants of this Agreement; (iii) Client breaches this Agreement or the documents it incorporates by reference in any other manner; (iv) Traffic Genie is unable to verify or authenticate any information Client provided to Traffic Genie; or (v) Traffic Genie believes that Client’s actions may cause financial loss or legal liability for Client or Traffic Genie.
- Rights Upon Termination. In the event of termination of this Agreement for any reason, the licenses granted under this Agreement shall automatically and immediately cease and Client shall destroy all copies of the Services in its possession, if any. Following termination the Client will have no right to use or access the Services. Upon termination, there will be no refund provided to Client and all outstanding fees owed by Client shall become immediately due and payable. In its discretion, Traffic Genie may permit a Client to recover data from the Services following termination after payment of additional fees. Termination shall not affect the rights of Traffic Genie to recover from Client losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or expert witnesses’ cost or other costs of any kind under this Agreement.
- Traffic Genie may give notice to Client of any matter under this Agreement (i) orally, by calling Client’s representative or by leaving a voicemail for Client’s representative at the telephone number in Client’s profile, (ii) by email to the email address provided by Client in Client’s profile, (iii) by regular mail to Client’s mailing address in Client’s profile, or (iv) by posting to our website and/or any of the applicable pages linked thereto, as updated from time to time. All mail notices shall be effective upon receipt, email and fax notices shall be effective upon transmission and all website notices shall be immediately effective upon posting.
By providing your contact information to Traffic Genie, you agree that Traffic Genie may use that information to contact you via email, postal mail, telephone or fax in any format or manner. Traffic Genie may, but shall have no obligation to, send a single notice by various means of delivery (i.e., fax, email, certified mail or express mail). In no event shall Traffic Genie be liable to you for choosing to send notice to one address, or by one means of delivery, and not others.
- Client may give notice to Traffic Genie by regular email to the following address:
Client is to give notice of termination of the Services to Traffic Genie by emailing Traffic Genie at:
Client agrees to fully defend, indemnify, and hold harmless Traffic Genie and each of Traffic Genie’ officers, directors, employees, agents, suppliers, service providers and affiliates (an “Indemnified Party”) from, against, and in respect of any and all losses, damages or deficiencies resulting from any third party claim against any Indemnified Party in connection with the following: (a) any breach of the covenants contained in this Agreement, (b) any Content provided by Client or generated by users of the Store, (c) any claims arising from the sale or license of goods or services in the Store or otherwise in conjunction with the Services, or (d) any breach of this Agreement or any of the documents it incorporates by reference. Traffic Genie and the other Indemnified Parties’ rights hereunder shall not be limited or offset by any contributory negligence by Traffic Genie or any other Indemnified Party. In connection with any request for indemnification under this Agreement, the indemnified party must: (i) give the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) grant control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperate with the indemnifying party at the indemnifying party’s expense.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL TRAFFIC GENIE BE LIABLE FOR ANY (A) LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRAFFIC GENIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF TRAFFIC GENIE UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT DURING THE THREE (3) MONTH PERIOD BEFORE THE DATE ON WHICH SUCH LIABILITY AROSE. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, TRAFFIC GENIE WOULD NOT ENTER INTO THIS AGREEMENT.
- Governing Law and Venue. This Agreement shall be governed in all respects by the laws of the State of Nevada without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in Nevada, with sole venue in the courts located in Clark County, and each party hereby submits to the personal jurisdiction of such Courts.
- Legal Compliance. Client shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding its our use of the Services.
- No Agency. Client and Traffic Genie are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
- Entire Agreement. This Agreement sets forth the entire understanding and agreement between Client and Traffic Genie with respect to the subject matter hereof. This Agreement may not be modified or amended by you without the express written consent of Traffic Genie.
- Force Majeure. Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
- Assignment. Client shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. Client agrees that this Agreement may be assigned by Traffic Genie, in Traffic Genie’ sole discretion.
- No Third Party Beneficiary. Client acknowledges and agrees that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
- Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Traffic Genie’ failure to act with respect to a breach by Client or others does not waive Traffic Genie’ right to act with respect to subsequent or similar breaches. Neither party may waive any right hereunder except expressly and in writing.
- Construction. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
- Survival. Sections 2 (Services), Section 3 (Ownership and License), 6 (Billing) with respect to any outstanding fees owed for the Services, 7 (Use of Client Data), 8 (Termination and Suspension), 9 (Notice), 10 (Indemnification), and 11 (Limitation of Liability), 12 (General) shall survive any termination or expiration of this Agreement where necessary for Traffic Genie to enforce its rights therein.
- Prohibited Transactions. Client warrants that Client is not, nor is Client acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, Client is not, nor is Client acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Client’s breach of this section shall result in immediate termination of the Agreement and forfeiture of any and all Services or amounts previously provided, paid and/or owed to Client under this Agreement.
- Miscellaneous. Each party hereto agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules, and regulations of the United States governing the export of technical information. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or this Agreement.
Traffic Genie, LLC All Rights Reserved.