“Accounts” means the advertiser accounts or accounts that will be reported on with the Reporting Service.
“Billing Period” means the period for which you agree to prepay fees, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Services for two (2) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Material" means all materials that you provide or post, upload, input or submit for public display through the Services.
"Maximum Accounts" means the maximum number of Accounts you are permitted to use with the Services as identified in your Order Form, plus any Accounts added as part of an upgrade.
"Order Form" or "Order" means the NinjaCat-approved form or online subscription process by which you agree to subscribe to the Services, specifying among other things, the service offering selected and the number of Accounts included.
“Pricing Page” means https://www.ninjacat.io/pricing
"Subscription Fee" means the amount you pay for the Services.
"Services" means the NinjaCat.io website, including the NinjaCat Blog (https://www.ninjacat.io/blog) (the "Website") and all content, services, features, activities, and products available at or through the Website, including, but not limited to, the reporting service (the "Reporting Service" https://app.ninjacat.io, the call tracking service (NinjaTrack) and, together with all other content, services, features, activities and products available through the Website.
"Subscription Term" means the period during which You have agreed to be subscribed to Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Services. These products and services include non-HubSpot apps available from, for example, the following: our integrations products page, partner directory, template marketplace, links made available through the Services and non-HubSpot services listed on services.hubspot.com.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Services for your benefit and have unique user identifications and passwords for the Subscriptions
"You", "your" or “Customer” means the person or entity using the Services or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
1 ACCOUNT REGISTRATION AND ACCESS
To register for the Reporting Service and create an account, you (including any agent designated by you operating on your behalf) must complete the registration process by providing NinjaCat with the information prompted by the registration form, including your name, email address, telephone, company name, company website, and password. You agree to provide us with complete and accurate information when you register for the Reporting Service, and to keep such information up to date.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow a third party to access the Reporting Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify NinjaCat immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Reporting Service.
NinjaCat may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2.1. License to NinjaCat
During the subscription term and subject to compliance by You with these Terms, NinjaCat hereby grants you a limited, revocable, non-exclusive, non-transferable and non-assignable license to (i) remotely access the Reporting Service to view and download your reports stored on the NinjaCat Website, located at https://app.ninjacat.io or https://www.mymarketingreports.com. (ii) to modify and distribute your downloaded reports.
In additional to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to:(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End-Users in furtherance of your internal business purposes as expressly permitted by these Terms; (b) use the Service to Process data on behalf of any third party; modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (c) falsely imply any sponsorship or association with NinjaCat Inc; (d) use the Service in any unlawful manner, included but not limited to violation of any person’s privacy rights; (e) use the Service for any forms of duplicative or unsolicited messages; (f) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (g) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components;(h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the service;(i) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene or discriminatory; (j) use the Service to knowingly transmit, link to, send or store any viruses, malware, Trojan horses, time bombs or any other similar harmful software; or (k) attempt to use, or use the Service in violation of these Term
2.2. License to Client Data
As between the parties, you shall retain ownership of any information, data and statistics that NinjaCat obtains from your data providers, such as raw data and log files generated by and/or provided to the Reporting Service.
You represent and warrant that you have all rights, licenses, and consents required to access your clients data on the NinjaCat platform.
NinjaCat agrees not to solicit any services directly to your clients.
As used in this section, "Personally Identifiable Information" refers to information that can be used to personally identify a unique individual, such as name, address and phone number.
3.1. Your Obligations With Respect to Cookies Used by the NinjaCat Script on Visitors to Your Website
The NinjaCat Script may store cookies on computers used by those who visit your website ("Visitors"). These cookies contain values that allow NinjaCat to detect if the Visitor is a returning Visitor or a first-time Visitor to your web page(s), and when the Visitor last visited the web page(s). Unless you direct us to do so, such as by associating an identity with the Visitor, no Personally Identifiable Information relating to the Visitor is stored within these cookies.
Your NinjaCat account is protected by a username and password, and should be accessed only by You or third parties that You authorize. You should take steps to protect against unauthorized access to or use of your username and password. You should also remember to log off when using any shared computer or device.
NinjaCat has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited and password-protected access and SSL encryption to protect transmission of data.
However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to NinjaCat, information we compile on your behalf, and/or information that we collect about you. NinjaCat cannot guarantee the security of such information and is not responsible for unauthorized access to client accounts or Client Data.
3.3. NinjaCat Limits Access to Your Information
NinjaCat will not knowingly permit access to, or otherwise divulge to a third party, the statistical information we compile for you, or any confidential advertising data from your clients except for the express purpose of generating reports which have been requested, authorized or approved by you, or unless acting under a good faith belief that such action is necessary to:(a) conform to legal requirements or comply with legal process; (b) protect and defend the rights or property of NinjaCat; (c) enforce our agreements with clients and/or visitors to our Website; or (d) troubleshoot problems with the Services.
3.4. Reporting Services Not Available for Websites Directed to Children
You may not use the Reporting Services in connection with: (a) any website or portion of a website labeled or described as a "Kid's" or "Children's" website; (b) any website or portion of a website directed at individuals under the age of 13; or (c) any website or portion of a website that you have reason to know is used primarily by individuals under the age of 13.
4. PROPRIETARY RIGHTS; RESTRICTIONS ON USE
4.1. Content on the Website
Any opinions expressed by the contributors, authors and moderators who post content to the Website are the personal opinions of the authors, not of NinjaCat, whether or not the authors are employees or contractors of NinjaCat. The Website and all materials published and/or distributed on or through the Website (including, but not limited, to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by NinjaCat or any other party.
4.2. NinjaCat's Exclusive Right to Manage Material
You acknowledge that any Material you post, upload, or submit to the NinjaCat Blog may be edited, removed, deleted, modified, published, transmitted, and displayed by NinjaCat in its sole discretion without your permission and you waive any rights you may have in having the Material altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or limit the availability of any Material from the NinjaCat Blog at any time, for any reason or for no reason at all. However, NinjaCat shall not be responsible for controlling or editing any Material and NinjaCat cannot ensure removal of inappropriate or unlawful Material. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of Material or for any failure to do so.
Except for the limited licenses expressly granted herein, NinjaCat expressly reserves all rights, title and interest in and to the NinjaCat Script, content on the NinjaCat Website, aggregate data and all processing, analytics, and other software and technology used by NinjaCat in the analysis of your website and/or the provision of the Services, including, without limitation, any derivatives, improvements, enhancements or extensions of the Services conceived, reduced to practice or otherwise developed on or on behalf of NinjaCat, all of which are valuable assets of NinjaCat, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
4.4. Restrictions on Use and Compliance
You shall not use, or allow the use of, the Services, except pursuant to the limited rights expressly granted in this Agreement; use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by NinjaCat or inconsistent with NinjaCat's standard security procedures, if any, accessible through your user interface; attempt to reverse engineer, hack into, or compromise any aspect of the NinjaCat Technology or Service, or attempt to access data or account information of any other customer of NinjaCat; remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by NinjaCat; use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the NinjaCat Technology and Service; use the NinjaCat Technology and Service for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, or for contemplated litigation, scholarship, or any other unintended purpose; post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program; post or transmit any message, data, image or program that would violate any property rights of others using the Services or on the NinjaCat Blog; upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; or use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others. You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including, without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
You agree to indemnify, hold harmless and (only if requested by NinjaCat) defend NinjaCat, at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against NinjaCat or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by NinjaCat or any of its officers, directors, employees, agents or affiliates, arising out of or relating to: (a) your breach of any term or condition of this Agreement or (b) your use of the Services. In such instances, NinjaCat will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to NinjaCat within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. NinjaCat reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant to NinjaCat that you:
(a) own or have obtained all rights necessary to publish/display all of the content provided by You on or through the Services and the user interface of the Services; and (b) have obtained all necessary consent(s) from Visitors required to enable the Services. You specifically agree that NinjaCat shall not be responsible for unauthorized access to or alteration of your data.NinjaCat does not represent or warrant that: (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable.
7. DISCLAIMERS AND LIMITATIONS ON LIABILITY
7.1. General Disclaimers
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. NinjaCat and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites ("Third Party Websites"). Access to Third Party Websites is at your own risk and NinjaCat is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites that you access from the Services. The Third Party Websites are not under the control of NinjaCat and as such, NinjaCat is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Website. NinjaCat provides these links merely as a convenience and the inclusion of such links does not imply an endorsement or recommendation.
7.2. Disclaimers of Warranties
THE SERVICES AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY NINJACAT EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD PARTY EQUIPMENT, MATERIALS, SERVICES OR SOFTWARE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. NINJACAT DOES NOT WARRANT THAT THE SERVICES, THE NINJACAT SCRIPT OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE REPORTING SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
YOU EXPRESSLY AGREE THAT YOUR USE OF SERVICES IS AT YOUR SOLE RISK.TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW
7.3. Limitations on Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE WILL NINJACAT AND ITS OFFICERS, DIRECTORS, AND EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES, LOSS OF GOODWILL, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF NINJACAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL.
NINJACAT'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO NINJACAT DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM FOR USE OF THE SERVICES.
8. SERVICE FAILURES
NinjaCat does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime:(a) caused by failures of or previously scheduled maintenance to NinjaCat's equipment or servers; (b) caused by outages to any public Internet backbones, networks or servers; (c) caused by any failures of your equipment, systems or local access services; or (d) relating to events beyond NinjaCat's control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where NinjaCat or your servers are located or co-located.
9. U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
10.1. Subscription Fees
The Subscription Fee will remain fixed during the Subscription Term unless you: (a) exceed your maximum Accounts or other applicable limits, (b) upgrade products, or (c) subscribe to additional features or products, including additional Accounts.
Prior to exceeding your Plan's Accounts limit, you will be automatically requested to be increase the maximum Accounts in your Plan by twenty-five (25) additional Accounts. Upon agreement, you will be immediately charged for the difference between your current Plan and the upgraded Plan (prorated for the remainder of your current billing cycle). You will continue to be charged at the upgraded plan unless you take steps to contact the sales team at [email protected]
As an express condition of your use of and access to the Services, you agree to, for the Subscription Term, pay all fees applicable to your Plan, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Services. To view the specific details of your Plan, including pricing information and the start date of your next renewal period, log in to your account on the NinjaCat Website (https://app.ninjacat.io/login) and click the "Account" page.
10.2. Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Services at any time or impose additional fees or charges. Such changes will be effective immediately upon posting on the NinjaCat Website; provided, however, that such fee changes will be effective only as to prospective Service orders (including subscription term renewals and/or Plan upgrades) after the effective date of such change. For clarification, Subscription Fees for Subscription Terms that were started or renewed prior to the change in fees are not subject to the change in fees until the next renewal term.
10.3. Payment of Fees
Your Plan will renew automatically at the end of the Subscription Term and continue annually unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section 10.8 ("Account Cancellation") and Section 12 ("Term and Termination")).
You must cancel your Plan before it renews in order to avoid fees due under the next Subscription Term. To view the specific details of your Plan, including the start date of your next renewal period, login to your Account at myppcreports.com and click the "Account" page.
We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Reporting Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
10.4. Ninjatrack Fees
If you use the NinjaTrack service you are responsible for inputting money into your NinjaTrack account to use to start purchasing numbers and consume minutes. You must specify a minimum NinjaTrack account balance and a recharge amount to be charged until the NinjaTrack account balance is higher than the minimum. You grant NinjaCat the right to charge to your credit card for all fees incurred under this policy.
All fees for phone numbers, per minute charges for minutes used, per text message rates for text messages sent and any other fees incurred as part of NinjaTrack will be deducted from the available NinjaTrack account balance.
If you have a NinjaTrack package which includes a number of included numbers and / or minutes, than those numbers and / or minutes will not be deducted from the available NinjaTrack account balance. If the NinjaTrack package has a service fee and package duration, then you are responsible for paying the service fee for the entire package duration. The package will automatically renew at the end of the package duration for the same duration unless you notify NinjaTrack (as per 10.7) prior to the renewal date.
10.5.1. Tracking Numbers:
Each tracking number purchased is valid for 30 days from the date of purchase and will thereafter automatically renew for successive additional 30-day periods. The monthly renewal fee for the number will be deducted from the available balance. You can cancel a tracking number by cancelling it on the NinjaTrack page.
10.5.2. Per Minute Charges
NinjaCat shall bill for all minutes of usage for each call from the instant a call is initiated by, or connected to, the NinjaTrack network to the instant all parties to such call are disconnected. Call duration calculations will be rounded up to the nearest minute.
10.6. Credit Card Payments
All fees for your Plan will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and associated with your Plan and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number, and expiration date) to keep your account current, complete and accurate, and you must promptly contact NinjaCat if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorized disclosure or use of your NinjaCat username or password). You authorize us to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you to the same extent as the expired card. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. For balances that are more than 60 days overdue, You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance.
We will not exercise our rights above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
10.7. Payment Terms, Refunds, and Upgrade and Downgrade Terms
Payment Terms, Refunds, and Upgrade and Downgrade TermsThe fees for your Plan are billed in advance of each billing cycle, are non-refundable, and automatically renew on an annual basis. No refunds or credits will be provided for partial months of the Services, upgrades/downgrades, or for months unused with an open account.
You may not downgrade your Plan's account limits until the end of your subscription term. If you subscribe to a Ninjacat Service which has a monthly fee outside of or in additional to your Subscription Fee, than that fee will be billed monthly.
If you downgrade your Plan level, Your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. NinjaCat does not accept any liability for such loss.
If you upgrade your Plan level, your credit card will immediately be charged a pro-rated amount reflecting the increased rate, and you will be charged the full amount of the new rate beginning with your next billing cycle.
Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals. Questions involving upgrades or downgrades to your Plan can be directed to [email protected]
10.8. Account Cancellation
You may cancel the Services upon thirty (30) days notice by either calling us and speaking to an authorized account representative or by sending an email to [email protected]
If you cancel your Plan thirty (30) days prior to the end of your Subscription Term, you will not be automatically renewed for the subsequent Subscription Term. You are still obligated to pay all remaining Subscription Fees for the current Subscription Term if any are outstanding. If you cancel your Plan, you will lose all access, upon the expiration of your Subscription Term, to the Services and any data or information stored in your account (see Section 12 ("Term and Termination") for additional details).If you cancel your Plan during a Free Trial Period, effective upon such cancellation, you will immediately lose all access to the Reporting Service and any data or information stored in your account.
11 NinjaTrack Terms
11.1. Call Recording:
NinjaTrack offers the ability to record incoming telephone calls. When a calling party initiates a call to a tracking phone number, NinjaTrack will, at your discretion, create a digital audio recording of the telephone call. NinjaTrack provides the ability to play a customizable voice message at the beginning of each call to alert callers that the call will be recorded.If you choose to record telephone calls, you expressly agree and acknowledge that:
1) You authorize NinjaTrack to make incoming call recordings on their behalf and
2) You either: a) configured and authorized NinjaTrack to play a voice message advising the caller that the call is being recorded prior to the call being connected to the party answering the call; OR b) have made the necessary arrangements to ensure that the caller is provided with the necessary warning about the presence of any recordings made of a call in accordance with the law.NinjaCat shall have no liability whatsoever in respect of any use made by you, your employees, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information.
11.2. Telephone Numbers:
NinjaTrack will use commercially reasonable efforts to obtain the telephone number(s) requested, and use commercially reasonable efforts to initiate and complete port requests.
You acknowledge that NinjaTrack may need to change the telephone number assigned to the Customer (due to an area code reassignment or split, or for any other reason). You acknowledge that if NinjaTrack is suspended or terminated due to a breach of this Agreement, You may not be able to obtain the same local or toll free numbers should the Service be reactivated. NinjaTrack may, after 30 days post-cancellation of service and the inability or lack of desire to port the telephone number, remove all telephone numbers from Account.You acknowledge that we are the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, NinjaTrack has certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion. We may allow you to port away phone numbers, so long as you:
(1) have an account in good standing, and
(2) have either ported in or purchased the phone number more than ninety (90) days prior to the port-away date. Using or attempting to use NinjaTrack merely a source of numbers to be immediately ported away without use of the numbers on our system is not permitted and a material breach of these terms.
12. TERM AND TERMINATION
NinjaCat may terminate or suspend access to the Services upon any material breach by You of any obligation of this Agreement, such termination to be effective thirty (30) days in the case of a curable material breach, and immediately, in the case of any non-curable material breach after receipt by You of written notice setting forth the breach.
12.2. Termination of Services
Either party may terminate the Services at any time and for any reason.
To terminate your use of the Services, please follow the steps described in Section 10.8 ("Account Cancellation").
Upon any termination of the Services:
(a) NinjaCat will cease providing the Services;
(b) any outstanding balance payable by you to NinjaCat will become immediately due and payable and any collection expenses incurred will be included in the amount owed;
(c) you will not be entitled to any refunds of any usage fees or any other fees; and
(d) all of your historical report data will no longer be available to you through NinjaCat.
13. MODIFICATIONS TO THIS AGREEMENT AND OTHER POLICIES
This Agreement may be modified only:
(a) by obtaining our written consent in an agreement signed by an officer of NinjaCat; or (b) as set forth below in the immediately following paragraph.
You agree that NinjaCat may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then- current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by (i) posting a notice on the NinjaCat Website for 30 days following any revisions or modifications to this Agreement, or (ii) posting a notice on the NinjaCat Website the first time that you visit the Website following such revisions or modifications or (iii) providing direct written notice of such changes in a communication to your client account. No material changes will take effect until thirty (30) days after such notice. By continuing to use the Services following receipt of such notice, you consent to the revised or modified terms of this Agreement. If you notify us that you do not consent, and we do not agree to revert to the prior Terms, then you may cancel this Agreement upon notice without further obligation.
14. MISCELLANEOUS; ARBITRATION, CHOICE OF LAW, AND VENUE
NinjaCat shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
14.2. Severability and Waiver
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
NinjaCat's acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive NinjaCat's right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of NinjaCat to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
14.3. Entire Agreement
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties.
14.4. Agreement to Arbitrate
Certain portions of this Section 14.4 are deemed to be a "written agreement for arbitration" pursuant to the Federal Arbitration Act. You and NinjaCat agree that we intend that this Section 14.4 satisfies the "writing" requirement of the Federal Arbitration Act.
If any controversy, allegation, or claim arises out of or relates to the Services, the Website, your Plan, or this Agreement, including, but not limited to, claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a "Dispute"), then either you or NinjaCat may elect to submit the Dispute to be finally and exclusively resolved by binding arbitration before a sole arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in Delaware; but if the applicable arbitration rules or laws require the arbitration to be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, NinjaCat shall have the right to elect to proceed to arbitration in such location. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and NinjaCat will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require NinjaCat to pay a greater portion or all of such fees and costs in order for this Section 14.4 to be enforceable, then NinjaCat will have the right to elect to pay the fees and costs and proceed to arbitration.
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A REPRESENTATIVE OR CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
14.5. Injunctive Relief
The foregoing provisions of this Section 14.4 will not apply to any: (i) legal action taken by you or NinjaCat to seek an injunction or other equitable relief, or (ii) controversy, allegation or claim that arises out of relates to your or NinjaCat's actual or alleged intellectual property rights.
14.6. Choice of Law and Forum
This Agreement shall be governed by and construed under the laws of the state of Delaware without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations; and Delaware law, rules, and regulations, Delaware law, rules and regulations shall prevail and govern. Except to the extent that arbitration is elected in accordance with Section 14.4 above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Delaware. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Delaware. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The NinjaCat Script and NinjaCat Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
NinjaCat may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your NinjaCat account or by written communication delivered by first class U.S. mail to your address on record.
Any notices to NinjaCat (via first class or air mail or overnight courier, and are deemed given upon receipt) must be sent to:
228 Park Ave. S.
New York, NY 10003-1502[email protected]
14.8. Transfer or Rights
You may not assign or otherwise transfer any of your rights hereunder without NinjaCat's prior written consent (which shall not be unreasonably withheld, or delayed) and any such attempt is void. The relationship between NinjaCat and you is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
NinjaCat may assign this Agreement, in whole or in part, at any time with or without notice.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
14.10 Force Majeure:
NinjaCat shall not be deemed in breach of this Agreement, nor for any breach of any implied warranty or other obligation, for any failure in performance arising in connection with circumstances beyond its reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident, or other acts of God.
14.11 Future Functionality
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features, unless explicitly agreed to in Your Order Form.
15. SPECIAL ADMONITIONS FOR INTERNATIONAL USE