Terms & Conditions – Feb 6th, 2018
1.Services to be Provided
1.1. TrafficSoda agrees to undertake and complete the “Services” as defined in “Scope of Work” Section within the proposal.
1.2. The Services will also include any other tasks which the Parties may agree to add to the scope of Services.
2.1. All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, or other materials developed in the delivery of the Services that are subject to copyright, trademark, patent, or similar protection (collectively, the “Work Product”) produced by TrafficSoda are the property of the Client provided: (1) such Work Product is accepted in writing by the Client within twelve (12) months of being proposed by TrafficSoda; and (2) Client pays all fees and costs associated with creating and, where applicable, producing such Work Product. Work Product that does not meet the two foregoing conditions shall remain TrafficSoda’s property.
2.2. Notwithstanding the foregoing, it is understood that TrafficSoda may, on occasion, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license. In such instances, Client agrees that it remains bound by the terms of such licenses. TrafficSoda will keep Client informed of any such limitations.
3. Term of Agreement
3.1. The term of this Agreement (the “Term”) will begin on the date of this Agreement and will remain in full force and effect until such time as (a) the full scope of project based Services has been completed; or (b) in the case of monthly services, to be delivered not less than twelve (12) months.
3.2. After the initial Term, the Client can terminate the Agreement with thirty (30) days notice.
3.3. In the event that either Party breaches a material provision in this Agreement that is not cured within thirty (30) days of notice of breach, termination may be immediate.
3.4. Upon termination, TrafficSoda will transfer and/or assign to Client: (1) all Work Product in TrafficSoda’s possession or control belonging to Client, subject, however, to any rights of third parties; and (2) all contracts with third parties, including web hosting or others, upon (i) being duly released by Client and any
such third party from any further obligations; and (ii) all outstanding monies owed to TrafficSoda have been paid. The transfer of Work Product does not include Services to implement or develop web sites, training, or otherwise further migration efforts.
4. Payment Terms
4.1. The Client will be invoiced for Services performed as defined in “Scope of Work” Section of this proposal.
4.2. Invoices submitted to the Client are payable within 15 days of the invoice date. Overdue invoices will incur interest penalties of 1.5% per month.
5. Reimbursement of Expenses
5.1. TrafficSoda will invoice for, and the Client agrees to reimburse, all reasonable and necessary expenses incurred in connection with providing the Services.
5.2. Expenses will be pre-approved by the Client.
6.1. The Parties agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential or proprietary regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. TrafficSoda and Client will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither TrafficSoda nor Client will be responsible for any loss or damage.
7. Indemnification and Warrantees
7.1. By Client. Client agrees to indemnify, save and hold harmless TrafficSoda from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify TrafficSoda in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. TrafficSoda shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Further, Client warrants that any elements of text, graphics, photos, designs, trademarks, or other artwork provided to TrafficSoda for use in the delivery of its Services, are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will indemnify TrafficSoda and its subcontractors from any liability or suit arising from the use of such elements.
7.2. By TrafficSoda. Subject to the terms, conditions, express representations and warranties provided in this Agreement, TrafficSoda agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with TrafficSoda’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.
7.3. TrafficSoda does not warrant:
7.3.1. Third party services which may include but are not limited to search engines, web hosting, ad purchases.
7.3.2. Behaviour of changes in search engines. Client acknowledges that:
18.104.22.168. TrafficSoda does not control the policies and ranking algorithms of search engines with respect to the type of sites and/or content that they accept now or in the future. Client’s web site may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory.
22.214.171.124. A website search engine ranking can fluctuate any day, any time because of on-going changes in the ranking algorithm, SEO efforts made by the competitors or both.
126.96.36.199. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, TrafficSoda does not guarantee No.1 positions or consistent top 10 positions for any particular keyword, phrase, or search term.
8. Access to Information and Accounts
8.1. In order to deliver the Services, Client agrees to provide the following: (i) Full access to existing website traffic statistics for analysis and tracking purposes, like access to Google Analytics; (ii) Access to Google+ pages for each location; (iii) Access to website Content Management System; (iv) Access to Webmaster Tools; (v) Access to Social Media accounts; (vi) AdWords Reports (or access).
9.1. Assignment. Neither Party shall have the right to assign any material obligation of this Agreement without the express written consent of the other.
9.2. Relationship of Parties. Notwithstanding any provision herein, for all purposes of this Agreement each Party shall be and act as an independent entities and not a partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Each Party shall be solely responsible for all obligations to employees and tax authorities.
9.3. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, sent by confirmed telecopy or other electronic means, or three (3) days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice.
9.4. Liability Waiver. Establishing a social media presence (or any presence online) and initiating a two-way flow of communication between the Client and the public can have unintended consequences on the Client’s reputation. Should this occur, the Client waives its right to hold TrafficSoda responsible for any damages and/or liability that may arise from TrafficSoda’s actions on behalf of the Client.
9.5. Miscellaneous. Client acknowledges and accepts the following with respect to Services from TrafficSoda:
9.5.1. All fees are non-refundable.
9.5.2. TrafficSoda is not responsible for changes made to the Client’s web site, content, ad purchases, etc. by the Client or other third parties that may negative affect the customer’s rankings. The Client could be charged an additional fee for re-constructing, re-optimizing content/web pages should anticipate project delays.
9.6. Governing Law. This Agreement shall be interpreted in accordance with the laws of the Province of Ontario without regard to its principles of conflicts of laws. Jurisdiction and venue shall be solely within the Province of Ontario.
9.7. Non-Solicitation: No Hire. For the period beginning on the date of this Agreement and ending on the date that is twelve (12) months after the termination, each Party will not, without the other Party’s prior written consent, hire, solicit, encourage or otherwise induce an employee to leave TrafficSoda.
9.8. Amendments and Addendums. Changes to this Agreement will be made and an Addendum or Amendment document, signed by each Party. Should the change be simply an inclusion of additional Services hours, the Parties agree that email approval from the Client’s authorized representative is sufficient to enact such a change.
9.9. Entire Agreement. This Agreement constitutes the entire Agreement related to Services between the Parties, superseding all prior oral or written negotiations, representations, understandings and agreements, on the subject hereof and there are no conditions to this Agreement which are not expressed herein.