TrafficMagnetsTM Terms of Use
IMPORTANT – READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING AND/OR OTHERWISE USING THE SOFTWARE, DATA AND/OR TECHNOLOGY KNOWN AS THE "TRAFFICMAGNET." TRAFFIC.COM, INC. ("TRAFFIC.COM") IS WILLING TO LICENSE THE "MAGNET" TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS MAGNET AGREEMENT, THE REGISTRATION FORM SUBMITTED BY YOU TO TRAFFIC.COM IN CONNECTION WITH THIS MAGNET AGREEMENT ("REGISTRATION FORM"), THE DATA YOU PROVIDED IN THE REGISTRATION FORM ("SUBMITTAL") AND ANY DOCUMENTS REFERENCED HEREIN (COLLECTIVELY, THE "AGREEMENT"). BY INSTALLING, DOWNLOADING AND/OR OTHERWISE USING THE MAGNET TECHNOLOGY (AS DEFINED HEREINAFTER), YOU
* (I) CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND THAT, IF YOU ARE ACTING ON BEHALF OF ANY PERSON OR ENTITY, YOU
ARE AUTHORIZED TO ACT ON BEHALF OF SUCH PARTY (COLLECTIVELY, "LICENSEE");
* (II) HAVE READ THIS AGREEMENT AND HAVE AGREED TO BE LEGALLY BOUND BY THIS AGREMENT; AND
* (III) AGREE TO ALL OPERATING RULES AND POLICIES OF TRAFFIC.COM THAT MAY BE PUBLISHED ON THIS WEBSITE ("TRAFFIC WEBSITE").
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY EXIT THIS PAGE BEFORE DOWNLOADING OR INSTALLING THE MAGNET TECHNOLOGY.OTHERWISE USING THE SOFTWARE, DATA AND/OR TECHNOLOGY KNOWN AS THE "TRAFFICMAGNET." TRAFFIC.COM, INC. ("TRAFFIC.COM") IS WILLING TO LICENSE THE "MAGNET" TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS MAGNET AGREEMENT, THE REGISTRATION FORM SUBMITTED BY YOU TO TRAFFIC.COM IN CONNECTION WITH THIS MAGNET AGREEMENT ("REGISTRATION FORM"), THE DATA YOU PROVIDED IN THE REGISTRATION FORM ("SUBMITTAL") AND ANY DOCUMENTS REFERENCED HEREIN (COLLECTIVELY, THE "AGREEMENT"). BY INSTALLING, DOWNLOADING AND/OR OTHERWISE USING THE MAGNET TECHNOLOGY (AS DEFINED HEREINAFTER), YOU
- (I) CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND THAT, IF YOU ARE ACTING ON BEHALF OF ANY PERSON OR ENTITY, YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH PARTY (COLLECTIVELY, "LICENSEE");
- (II) HAVE READ THIS AGREEMENT AND HAVE AGREED TO BE LEGALLY BOUND BY THIS AGREEMENT; AND
- (III) AGREE TO ALL OPERATING RULES AND POLICIES OF TRAFFIC.COM THAT MAY BE PUBLISHED ON THIS WEBSITE ("TRAFFIC WEBSITE").
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY EXIT THIS PAGE BEFORE DOWNLOADING OR INSTALLING THE MAGNET TECHNOLOGY.
I. TrafficMagnet Service.
During the term hereof, Licensee shall have the right to access the services made available by Traffic.com in connection with retrieving and displaying traffic and traffic related information (the "Traffic Services") on the pages of Licensee’s website located at the URL identified in the Submittal (the "Licensed Website") through the use of script files, programs and other software ("Traffic Interface") in accordance with the specifications, protocols and standards communicated to Licensee by Traffic.com from time to time. Licensee shall provide (including the costs associated therewith) all equipment, software and telecommunications lines necessary for Licensee to access the Traffic Services for the retrieval of traffic incident and event data, including information regarding accidents, construction, travel times and speeds and general road conditions that Traffic.com makes generally available to its other Magnet customers for the geographic location identified in the Submittal (the "Traffic Content").
II. Grant of License; Restrictions.
(a) During the term hereof, Traffic.com hereby grants Licensee a non-exclusive, non-transferable right and license to (i) access the Traffic Content, Traffic Interface, Traffic Services and any and all intellectual property and proprietary rights embodied therein (the "Magnet Technology") in the form of compiled, executable object code to access the Traffic Services to retrieve Traffic Content for display within the Traffic Interface at the Licensee Site and (ii) use and display the Traffic Content on the Licensee Site for access by any authorized users or visitors to the Licensee Site ("End User") for their immediate, non-commercial purposes.
(b) Traffic.com reserves any rights not expressly stated herein. Without limiting the generality of the foregoing, specifically excluded from the license granted herein are (i) any use or operation of the Magnet Technology on any internet sites, intranets, extranets or similarly established open or limited access client-server architectures other than the Licensee Site; (ii) any use or operation of the Magnet Technology in any manner intended to compete with Traffic.com. or on any publicly accessible website intended or promoted as being primarily a source of traffic or traffic related information; (iii) applications that allow for the download and storage of traffic and traffic related information; (iv) applications involving browsers, servers or other devices not operated solely for access to the Licensee Site; (v) products configured to be, or World-Wide-Web pages specifically designed for, CD-ROM/Online hybrids, fleet management, real time navigation, Interactive Television, wireless or satellite delivery services or applications, or handheld personal digital assistants or similar devices; (vi) modification, alteration, adaptation, translation, reverse-engineering, decompiling, disassembly, reverse compilation, creation of derivative works of or attempt to derive the source code of the Magnet Technology or any portion thereof including, but not limited to, the addition, deletion or omission of any component of the Traffic Content (such as, altering the size, color, placement or style of the Traffic Content and/or deleting any graphic, image, text, map, hyperlink, credit, legal notice, logo or trademark); (vii) use the Magnet Technology to allow third parties to link to the Licensee Site for the primary purpose of obtaining traffic and traffic related information; (viii) sublicense, lease, market, convey, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the Magnet Technology or any portion thereof to any third party; (ix) use for Traffic Content to directly or indirectly endorse, sponsor, certify or approve of other content included within the Licensee Site or any products or services offered, displayed or made available on the Licensee Site; (x) use the Traffic Content in connection with any streaming video, text to voice, audio or video application or delivery method; (xi) use the Traffic Content in connection with broadcast, satellite or cable television and/or radio station; (xii) use the Magnet Technology to operate a service bureau or process or generate data for any third party; or (xiii) cause, assist or permit any third party to do any of the foregoing.
(c) During the term hereof, Traffic.com has the right, but not the obligation to review and approve the manner in which the Traffic Content is displayed on the Licensee Site to verify Licensee’s compliance with terms and conditions of this Agreement. Without limiting the foregoing, Licensee shall not display or cause any content to be displayed on any pages of the Licensee Site that promotes, or links to any site containing, adult themes, grossly offensive content, tobacco or alcohol-related products, gambling-related (except in the case of promotions) products, "get rich" schemes, or material that exploits minors. Licensee shall require each End User to agree to an end user license agreement containing terms and conditions reasonably acceptable to Traffic.com.
III. Ownership of Technology.
Licensee represents to Traffic.com that Licensee has all right, title and interest in, or if applicable, licenses to, the content data, software, equipment and other technology used in connection with the Licensee Site other than the Magnet Technology, and to all of its trademarks, service marks and other proprietary information ("Licensee Technology" and in context "Technology"). Traffic.com has all right, title and interest in and to the Magnet Technology (and in context "Technology"). Each party agrees that it has no right, title or interest in and to the other party’s Technology.
IV. Indemnity.
If any claim is asserted against one party ("Indemnitee") that the Technology of the other party ("Indemnitor") infringes the intellectual property rights in the United States of America of any third party, the Indemnitee shall promptly advise the Indemnitor in writing of such claim, and the Indemnitor shall have the right to elect to control the defense of such claim with counsel of Indemnitor's choosing, and to the extent Indemnitor so elects to defend, the Indemnitee shall cooperate fully in the defense thereof and furnish to the Indemnitor all evidence and assistance in Indemnitee's control. If the Indemnitor controls the defense or in its sole discretion elects not to control the defense but is determined to have so infringed, the Indemnitor shall indemnify the Indemnitee from and against any and all liability, damages, and reasonable costs (not including attorneys' fees incurred by the Indemnitee in monitoring or participating in any defense provided by Indemnitor) incurred by Indemnitee as a result of any such claim or any resulting judgment or settlement.
V. Limited Warranty.
(a) Licensee represents and warrants that the Submittal: (i) shall be true, accurate, current, complete and not misleading; (ii) shall not violate the rights of any third party; (iii) shall not be fraudulent; (iv) shall not violate any law, statue, ordinance or regulation; and (v) shall not contain any viruses, or other computer programming routines that are intended to damage, interfere with or intercept any data or personal information. Licensee also agrees to maintain and promptly update the Submittal by means of the Traffic Service in order to keep the information true, accurate, current, and complete.
(b) Licensee shall be responsible for providing End Users with support and technical assistance. Traffic.com will provide e-mail support to Licensee during normal business through the Traffic.com website and in accordance with its then current policies and procedures. Traffic.com, at its sole discretion, may provide updates to the Magnet Technology from time to time.
(c) TO THE FULLEST EXTENT POSSIBLE, TRAFFIC.COM DISCLAIMS ANY AND ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO ANY PERFORMANCE OF ANY OF ITS OBLIGATIONS HEREUNDER OR ALL OR ANY PORTION THEREOF. IF THIS EXCLUSION IS HELD UNENFORCEABLE, THEN ALL WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
VI. Term.
This Agreement shall commence on the date on which Licensee downloads the Magnet Technology ("Effective Date") and shall continue until terminated in accordance with the terms and conditions set forth herein ("Term"). Notwithstanding the foregoing, either party may terminate this Agreement at any time during the Term for any reason whatsoever by providing the other party with thirty (30) days advance written notice. Those provisions that expressly or by their nature survive shall survive termination of this Agreement, including, without limitation, all payments due and owing to either party and Sections III, IV, and X. All other rights and obligations of the parties shall cease upon termination of this Agreement and Licensee shall promptly remove any and all Magnet Technology in its possession and/or control.
VII. Default.
This Agreement shall be terminated at the option of the non-defaulting party, by written notice thereof to the defaulting party, specifying in reasonable detail the reason for termination, if (i) the defaulting party breaches or otherwise fails to perform or comply in a material respect with a material obligation or covenant, and such breach or failure is not cured to the non-defaulting party’s reasonable satisfaction within five (5) days receipt of such notice; or (ii) the defaulting party fails to comply strictly with the provisions of Sections II, III or X.
VIII. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OF THE TECHNOLOGY OR PERFORMANCE OF THE OBLIGATIONS HEREUNDER, EVEN IF THE AFFECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for (i) a party's obligation to indemnify the other pursuant to Section IV, (ii) damages arising from a party's breach of a confidentiality obligation set forth herein and/or (iii) Licensee’s breach of the scope of the license set forth herein, in no event shall a party's maximum liability arising out of contract, negligence, strict liability or otherwise exceed the amount of fees paid or otherwise payable to Traffic.com by Licensee or third party advertisers, provided that in no event shall Traffic.com’s liability exceed fifty ($50.00) dollars.
IX. Fees.
In consideration of the license granted hereunder, Licensee shall permit Traffic.com to insert, embed or otherwise include both active and non-active banners, images, textual and/or graphic links, and/or advertisements within the Traffic Content that promote Traffic.com and/or third parties, and, in the case of active links, may link an End User to any Traffic.com and/or third party website. Traffic.com shall retain all revenue derived from such promotions.
X. Confidentiality.
At all times during the term hereof and at all times thereafter, each party shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of itself or any other individual or entity any Confidential Information of the other party. "Confidential Information" means any trade secrets or confidential or proprietary information whether in written, digital, oral or other form which is unique, confidential or proprietary to the disclosing party, including, but not limited to, the Licensee Content, Traffic Content and each party’s Technology, and any other materials or information related to the business or activities of the disclosing party which are not generally known to others engaged in similar businesses or activities. Either party’s failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder.
XI. Miscellaneous.
(a) This Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. No terms contained on any proposal, purchase order, acknowledgment or other document will be effective with respect to affecting the terms hereof.
(b) No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof of such party's rights thereafter to exercise or enforce each and every right and provision hereof. No single waiver will constitute a continuing or subsequent waiver. No waiver, modification or amendment of any provision hereof will be effective unless it is in a signed writing by the parties.
(c) Licensee may not assign its rights or obligations hereunder (including a change of control) without the prior written consent of Traffic.com. Traffic.com may assign this Agreement at any time without the consent of Licensee. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of the parties.
(d) This Agreement shall be governed and construed in all respects by the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict of laws and without application of the Uniform Computer Information Transaction Act and the United Nations Convention of Controls for International Sale of Goods. The parties agree that the exclusive jurisdiction and venue of any dispute amongst the parties shall be entered in the state or federal courts within Pennsylvania and each of the parties hereby submit to the exclusive jurisdiction and venue of such courts for the purposes of such action. To the fullest extent permitted by applicable law, each of the parties hereby waives and covenants that it will not assert (whether as plaintiff, defendant, or otherwise), any right to trial by jury in any forum in respect of any claim arising out of or based upon this Agreement.
(e) Each party expressly acknowledges and agrees that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to the other party which may not be adequately compensated by damages. Each party, therefore, expressly agrees that in the event of such breach or threatened breach and in addition to any and all available equitable and legal remedies, each party shall have the right, after providing timely notice to the other party, to seek equitable injunctive relief in connection with such breach or threatened breach.
(f) If any provision of this Agreement or the application thereof to any party or circumstance is held to be invalid, illegal, or unenforceable in any respect, that provision to that extent shall be severed from this Agreement (but, to the extent permitted by law, not otherwise), and shall not affect the remainder hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
(g) Neither party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed due to circumstances beyond its reasonable control.
(h) All notices hereunder must be in writing and mailed by certified mail, return receipt requested, or by prepaid courier service, or by telecopier with receipt confirmed by telephone, to Traffic.com, Inc., 851 Duportail Road, Wayne, Pennsylvania 19087, attention Traffic.com Magnet Webmaster with a copy to the attention of the General Counsel, or to the address provided by Licensee in the Submittal, unless otherwise designated by the parties from time to time.
(i) The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
