TERMS OF SERVICE
These Terms and Conditions set out our and your legal rights and obligations in relation to the Services provided to you on this website (www.trafficsninja.com). Please read the Terms and Conditions carefully and make sure you understand them before purchasing any Services from us.
In using this website, you indicate that you have read and accepted the following Terms and Conditions. We reserve the right to change and update the Policy at any time.
1. Definitions and interpretation
1.1 In this Agreement:
“Affiliate” means a company, firm or individual that Controls, is Controlled by, or is under common Control with the relevant company, firm or individual;
“Agreement” means this agreement (including the Schedule and any appendices thereto) and any amendments to it from time to time;
“Business Day” means any week day, other than a bank or public holiday in England;
“Business Hours” means between 09:00 and 17:00 on a Business Day;
“Charges” means the amounts payable by the Customer to TrafficsNinja under or in relation to this Agreement (including expenses), calculated in accordance with Clause 7;
“Confidential Information” means any information supplied (whether supplied in writing, orally or otherwise) by one party to the other party marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the company, firm or person specified in the Statement of Work;
“Effective Date” means the date of execution of the Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including but not limited to any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Personal Data” has the meaning given to it in the Data Protection Act 1998;
“Reseller” means the company, firm or person as specified in the Statement of Work who has been authorised to resell our Services;
“Schedule” means the schedule attached to the Web Services Terms;
“Services” means the services provided under the Agreement as specified in the Schedules and Statements of Work;
“Statement of Work” means a statement of work signed by each of the parties specifying the scope of the Services and other matters relating to the Agreement;
“Term” means the term of this Agreement;
“Website” means the website or websites specified in the Schedule; and
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Effective Date or on any anniversary of the Effective Date.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement; it follows that a general concept or category utilised in this Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
The Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 13, upon which it will terminate automatically, unless terminated earlier in accordance with Clause 13.
TrafficsNinja will provide to the Customer during the Term of the Services specified in the applicable Statements of Work.
4. Customer Responsibilities
4.1 The Customer will provide TrafficsNinja with all co-operation, information and documentation reasonably required for the provision of the Services, and the Customer will be responsible for procuring any third party co-operation reasonably required for the provision of the Services.
4.2 Save as expressly provided in the Agreement, the Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
4.3 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify TrafficsNinja immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
4.4 The Services are provided to the Customer only, and the Customer must not resell or otherwise provide or make available the Services to any third party without prior agreement/authorisation by TrafficsNinja.
5.1 Without prejudice to the generality of Clause 10.1, the Customer warrants that any marketing list (including any email marketing list) provided by the Customer, or on behalf of the Customer, to TrafficsNinja will have been collected and collated in accordance with all applicable laws and regulations, and that the use of any such list by TrafficsNinja for the purposes of the Services in accordance with the instructions of the Customer will not:
(a) breach any applicable laws (including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003);
(b) infringe any third party’s legal rights; or
(c) give rise to any cause of action whether against TrafficsNinja, the Customer, or any other person.
5.2 Where TrafficsNinja reasonably suspects that there has been a breach of the provisions of this Clause 5, TrafficsNinja may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
5.3 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of this Agreement.
5.4 The Customer hereby indemnifies and undertakes to keep indemnified TrafficsNinja against any and all liabilities, damages, losses, expenses and costs (including legal expenses and amounts paid in settlement of any claim or legal action) arising, directly or indirectly, out of any breach by the Customer of this Clause 5.
6. Intellectual Property Rights
6.1 The Customer grants to TrafficsNinja a non-exclusive licence to use the website(s) to the extent required for TrafficsNinja to perform its obligations and exercise its rights under the Agreement.
6.2 All Intellectual Property Rights of all on-page SEO work and content created on a customer website, remains the property of the customer during AND AFTER the term of the contract.
6.3 TrafficsNinja will not pass off as their own, any content or images that do not have the appropriate licenses in place for allowed copyright for use within any electronic document or website(s). TrafficsNinja will not infringe the copyright of the customer’s competitor sites and /or leave the customer in a libellous situation howsoever arising.
7. Charges and payment
7.1 The Customer will pay to TrafficsNinja the Charges in respect of the Services, which will be equal to: the sum listed as a monthly retainer in the schedule.
7.2 TrafficsNinja will ensure that the Charges in respect of the Services provided in any period do not exceed the budget specified in the Schedule in respect of that period.
7.3 TrafficsNinja will issue invoices to the Customer in respect of Charges for the Services monthly in advance on the 1st day of each calendar month during the Term.
7.4 The Customer will pay the Charges to TrafficsNinja within 7 days of the date of [issue/receipt] of an invoice issued in accordance with Clause 7.3.
7.5 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise.
7.6 Charges must be paid by debit or credit card, direct debit, PayPal, bank transfer or by cheque (using such payment details as are notified by TrafficsNinja to the Customer from time to time).
7.7 If the Customer does not pay any amount properly due to TrafficsNinja under or in connection with this Agreement, TrafficsNinja may:
(a) charge the Customer interest on the overdue amount at the rate of 3 % per year above the base rate of HSBC Bank PLC from time to time (which interest will accrue daily from the due date until the date of actual payment); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
7.8 TrafficsNinja will:
(a) ensure that the personnel providing the Services complete records of their time spent providing those Services;
(b) retain such records during the Term and for a period of 12 months following the end of the Term; and
(c) supply such records to the Customer within 15 Business Days following receipt of a written request to do so.
8.1 The Customer warrants to TrafficsNinja that it has the legal right and authority to enter into and perform its obligations under this Agreement.
8.2 TrafficsNinja warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with reasonable care and skill.
8.3 The Customer acknowledges that:
(a) Google algorithms will change from time-to-time, which may affect the Website’s rankings in the search engine results pages, and TrafficsNinja has no control over such changes;
(b) It can take many months for the Organic Search to have any significant effects upon the ranking of a Website in the search engine results pages;
(c) Link Building is an on-going task and, should the Customer terminate this Agreement and/or stop promoting the Website, that would be likely to have a negative impact upon the effects of the Services;
(d) TrafficsNinja will not be responsible for any alterations to the Website made by the Customer or any third party that reverse or effect changes made to the Website by TrafficsNinja as part of the Services;
(e) The promotion of the Website may lead to higher traffic levels and bandwidth requirements for the Website, and the Customer will be responsible for arranging and paying for such requirements; and
(f) Notwithstanding the Services, the Website’s search engine results page rankings and traffic levels may decrease as well as increase.
8.4 TrafficsNinja does not warrant that any particular results will be achieved through the SEO. Where TrafficsNinja indicates specific targets that it will attempt to meet through the provision of the Services, such targets are not warranted and a failure to meet such targets will not be a breach of the Agreement.
8.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9. Limitations and exclusions of liability
9.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
(a) are subject to Clause 9.1;
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out in the Agreement.
9.3 TrafficsNinja will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
9.4 TrafficsNinja will not be liable for any loss of business, contracts or commercial opportunities.
9.5 TrafficsNinja will not be liable for any loss of or damage to goodwill or reputation.
9.6 TrafficsNinja will not be liable in respect of any loss or corruption of any data, database or software.
9.7 TrafficsNinja will not be liable in respect of any special, indirect or consequential loss or damage.
9.8 TrafficsNinja will not be liable for any losses arising out of a Force Majeure Event.
9.9 TrafficsNinja’s liability in relation to any event or series of related events will not exceed:
(a) the total amount paid and payable by the Customer to TrafficsNinja under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
9.10 TrafficsNinja’s maximum aggregate liability under the Agreement and any collateral contracts arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed:
(a) an amount equal to the total amount paid and payable by the Customer to TrafficsNinja under the Agreement in the 12 month period immediately preceding the event giving rise to liability.
10. Data protection
10.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to TrafficsNinja under this Agreement, and that the processing of that Personal Data by TrafficsNinja for the purposes of and in accordance with the terms of this Agreement will not breach any applicable laws.
10.2 TrafficsNinja warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by TrafficsNinja on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data processed by TrafficsNinja on behalf of the Customer.
11.1 Each party will keep confidential the Confidential Information of the other party, and will not disclose that Confidential Information except as expressly permitted by this Clause 11.
11.2 Each party will protect the confidentiality of the Confidential Information of the other party using at least reasonable security measures.
11.3 The Confidential Information of a party may be disclosed by the other party to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
11.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of this Agreement);
(b) is known to the receiving party, and can be shown by the receiving party to have been known to it, before disclosure by the other party; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a competent governmental authority, regulatory body or stock exchange.
Neither party will make any public disclosure relating to this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party.
13.1 Either party may terminate the Agreement at any time by giving at least 30 days’ written notice to the other party expiring at any time after the later of:
(a) the end of the Minimum Term; and
(b) the end of any minimum period specified in any Schedule or Statement of Work.
13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement.
13.3 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company 0r organisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
14. Effects of termination
14.1 Termination of the Agreement will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
14.2 Subject to Clause 14.1, upon termination all the provisions of the Agreement will cease to have effect, save that:
(a) the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 6.5, 6.6, 6.7, 8, 9, 11, 14 and 15; and
(b) the provisions of the Schedules and Statements of Work expressed to survive and continue to have effect will do so (in accordance with their terms of otherwise indefinitely).
14.3 If the Agreement is terminated under Clause 13.1, or by the Customer under Clause 13.2 or 13.3 (but not in any other case) the Customer will be entitled to a refund of any Charges paid by the Customer to TrafficsNinja in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to TrafficsNinja (such amount to be calculated by TrafficsNinja using any reasonable methodology).
14.4 Save as provided in Clause 14.3, the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to TrafficsNinja.
TrafficsNinja will not, without the other party’s prior written consent, during the Term or for a period of 6 months after the end of the Term, directly or indirectly, either for itself / himself / herself or for any other person, firm or company:
(a) solicit the business of any person, firm, company or otherwise who is or was a client, customer, supplier, sub-contractor or agent of TrafficsNinja; or
(b) engage, employ or otherwise solicit for employment any employee or contractor of TrafficsNinja involved in the performance of the Agreement.
16.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by pre-paid fast post or courier, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address given in the applicable Statement of Work (or as notified by one party to the other in accordance with this Clause).
16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by pre-paid fast post or courier, 72 hours after posting; and
(c) where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
16.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.6 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.7 TrafficsNinja may freely assign its rights and obligations under the Agreement without the Customer’s consent to any Affiliate of the assigning party or any successor to all or substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
16.8 TrafficsNinja may subcontract any of its obligations under the Agreement to any third party.
16.9 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfill their obligations under the Agreement.
16.10 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
16.11 Subject to Clause 9.1:
(a) the Agreement will constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement; and
(c) neither party will have any liability other than pursuant to the express terms of the Agreement.
16.12 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
END OF AGREEMENT.