By checking the box on the Order Summary Page, you confirm that you have read and electronically approve the Archie Terms & Conditions listed below and agree to be financially bound to the Archie Platform Licensing Agreement (including services selected) obligated to pay the fees described on the Order Summary Page.
- Scope of Agreement.
- Archie Platform Program. Teal Media is a full-service creative agency that designs with a conscience. Teal Media believes that purposeful design can transform organizations, inspire action, and enable progress. The Archie Platform is a branding and web development service offered by Teal Media, which provides access to a set of proprietary software on a subscription basis, layouts and hosting to Teal Media customers (“Archie Platform”) as more completely described on the Statement of Work (“SOW”) attached hereto as Exhibit A and additional terms in Exhibit B. An Archie Platform website is an individual web page or small cluster of web pages that act as a separate website for a brand. An Archie Platform website will live on a customer’s domain, but some exist as a subdomain. Teal Media customers will own the domain name(s), graphics and content associated with the Archie Platform website. Customers have use of the Archie Platform on a subscription basis and do not have access to or ownership of the underlying source code. They are permitted to make revisions or edits to the layout and content through an administration interface. Customers may choose the ultimate visual design, graphics, website content, and have access to Teal Media analytics for each Archie Platform website that they are licensed to use. While Teal Media specializes in fully custom websites and designs for customers, the Archie Platform is not a completely custom website. Rather, with an Archie Platform website, the Customer receives a custom design and use of content layouts to add their own graphics, photos and text to the content area. As such, Teal Media licenses to Customer the right to use the Archie Platform in exchange for a one-time setup fee and monthly fee. If Customer desires a full-service custom website and design, then Customer should not sign this Agreement, but rather a customer should request a copy of Teal Media’s standard Professional Services Agreement in order to engage Teal Media’s for full-service website design.
- Services; Statements of Work. This Agreement is intended to be a licensing agreement, whereby Teal Media licenses to Customer and Customer subscribes from Teal Media, the right to use the Archie Platform on a subscription basis (“Subscription Services”) in exchange for the service fee described herein (See definition of “Subscription Service Fees” in Section 4.1). Customer and Teal Media may agree on such Subscription Services under one or more written SOW’s, which shall be signed by both Parties. If no Subscription Services are described in a SOW, then Subscription Services will be performed by Teal Media for Customer on an agreed upon time and materials basis per the direction of Customer. The Customer acknowledges and agrees that Teal Media may use independent contractors to complete the Subscription Services without the prior advance consent of Customer. Any SOW between the Parties will be governed exclusively by the terms of this Agreement, whether or not this Agreement is specifically mentioned. An initial SOW is attached hereto as Exhibit A.
- Changes to the Archie Platform. Teal Media reserves the right to change the Archie Platforms periodically without the prior consent or notice to Customer. The changes may be in the form of necessary platform maintenance, feature upgrades or other modifications that may affect the look, feel and functionality of the Archie Platform.
- Termination.
- Term. This Agreement will commence on the Effective Date and will remain in effect for one (1) year thereafter unless terminated earlier pursuant to this Agreement (“Termination Date”); provided, however, that if there is a SOW for which the Parties have obligations that extend beyond such Termination Date, the terms of this Agreement will continue to apply to such SOW until all obligations in such SOW have been satisfied.
- Term and Termination. This Agreement shall continue for (i) one (1) year (“Initial Term”) commencing on the Effective Date, and (ii) shall automatically renew for successive 30-day terms thereafter (each a “Renewal Term”). Customer may not terminate the Initial Term, however, Customer may terminate any Renewal Term by providing Teal Media with written notice of its intent to terminate this Agreement during any Renewal Term (“Notice of Termination”). Upon Notice of Termination, Customer shall be liable for payment during the 30-day Notice of Termination. Upon Termination of this Agreement for any reason, the Archie Platform, including, without limitation, all related source code, which shall remain the sole and exclusive property of Teal Media and Customer’s license to use the Archie Platform shall immediately expire and terminate, provided however, the domain name, graphics and content will remain the property of Customer.
- Effects of Termination. Termination of this Agreement will not release Customer from any obligation to pay all Subscription Service Fees (as defined herein) and expenses that have accrued under this Agreement. The Parties’ rights and obligations under this Agreement, including without limitation, Sections 4.1, 4.2, 4.3, 4.4, 4.5, 6, 7, 8.3, 9, 10, 12, 13 and 14 shall survive termination or expiration of this Agreement. Upon termination of this Agreement by Teal Media for cause, all licenses granted to Customer hereunder shall immediately terminate. If any license granted under this Agreement expires or otherwise terminates, Customer will (a) immediately cease using the licensed materials, and (b) certify to Teal Media within thirty (30) days of expiration or termination that Customer has destroyed or returned to Teal Media such materials and all copies thereof remaining in Customer’s possession. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.
- Independent Contractor. Teal Media is an independent contractor and nothing in this Agreement or related to Teal Media’s performance under any SOW will be construed to create an employee or partnership relationship between Customer and Teal Media or any of Teal Media’s consultants, contractors or employees.
- Pricing and Payment Terms.
- Subscription Services. Customer shall pay Teal Media for Subscription Services and all fees and expenses provided under this Agreement and any SOW. Unless otherwise stated in a relevant SOW, the Subscription Services performed by Teal Media will be billed in accordance with the attached SOW. Customer may request certain additional services such as branding or design support and such additional services will be billed on a flat-fee or on a time and materials (i.e. hourly) basis with mark-ups for overtime, weekends and holidays as specified in an applicable SOW and the fees more completely described herein (collectively, referred to herein as the “Subscription Service Fees”)
- Expenses. As stated in Section 4.1, Customer shall reimburse Teal Media for actual expenses incurred by Teal Media in performing the Subscription Services, including, but not limited to all travel and mileage charges, purchase of stock imagery, fonts, and other design/development assets that are part of the Subscription Services (collectively, the “Expenses”). Teal Media will provide Customer with a summary of expenses during the course of providing the Subscription Services.
- Subscription Service Fees and Payment Terms. Customer will pay the Subscription Services Fees in accordance with the attached SOW.
- Taxes. Amounts payable by Customer hereunder do not include local, state, or federal sales, use, value-added, or other taxes (collectively, “Taxes”) based on the licenses and services provided under this Agreement or Customer’s use thereof. Customer shall be responsible for the payment of all Taxes, from whatever source, related to the Subscription Services under this Agreement. Customer will be invoiced for, and Customer shall pay, such taxes if Teal Media is required to pay them on Customer’s behalf. If Customer is exempt from state and local sales/use/withholding taxes, then Customer shall provide Teal Media with a current exemption certificate from the appropriate jurisdiction(s).
- Failure To Pay. Customer acknowledges that its failure to pay timely any of the Subscription Service Fees payable hereunder, or any portion thereof, unless such Subscription Service Fees are being disputed by Customer in good faith and in accordance with this Agreement, will be a material breach of this Agreement for which Teal Media may, in addition to pursuing all other remedies, withhold Subscription Services and/or terminate this Agreement and discontinue Customer’s Archie Platform from being published on the Worldwide Web.
- Acceptance of the Archie Platform.
- Acceptance of the Archie Platform. The Subscription Services are provided from Teal Media to Customer on an as-is, where-is basis, without any warranties of any kind and by signing this Agreement, Customer accepts the Subscription Services and the Archie Platform.
- Third-Party Products. Teal Media is not responsible for the performance of any hardware, software or other materials provided by third parties (“Third-Party Products” AKA “Third-Party Application” E.g. third-party analytics and software). Product warranties for third party products, if any, are provided by the manufacturers thereof and not by Teal Media. An installation of any Third-Party Products by Teal Media does not create an obligation or warranty by Teal Media to Customer.
- SUBJECT TO THE AGGREGATE LIMITATIONS OF LIABILITY AS PROVIDED IN SECTION 7, THE EXPRESS REMEDIES SET FORTH SECTION 7 SHALL CONSTITUTE CUSTOMER’S EXCLUSIVE REMEDIES, AND TEAL MEDIA’S SOLE OBLIGATION AND LIABILITY, FOR ANY CLAIM (I) THAT A DELIVERABLE PROVIDED HEREUNDER DOES NOT CONFORM TO SPECIFICATIONS OR IS OTHERWISE DEFECTIVE, OR (II) THAT THE SUBSCRIPTION SERVICES WERE PERFORMED IMPROPERLY.
- DISCLAIMERS.
- TEAL MEDIA DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY DELIVERABLES, INCLUDING WITHOUT LIMITATION, THE ARCHIE PLATFORM, WILL MEET CUSTOMER’S REQUIREMENTS, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
- THE SUBSCRIPTION SERVICES AND ARCHIE PLATFORM ARE PROVIDED STRICTLY “AS IS” and “WHERE IS” AND TEAL MEDIA MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE ARCHIE PLATFORM OR SUBSCRIPTION SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. IN ADDITION, TEAL MEDIA DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL TEAL MEDIA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, USE, DAMAGED FILES OR DATA, OR BUSINESS INTERRUPTION, THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, THE SUBSCRIPTION SERVICES AND SOW, OR THE USE AND SUPPORT OF THE SUBSCRIPTION SERVICES, OR ARCHIE PLATFORM, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON REMEDIES WHICH ARE SOUGHT IN CONTRACT OR TORT, OR OTHERWISE, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES AND AGREES THAT TEAL MEDIA’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATES, SUCCESSORS AND ASSIGNS UNDER THIS AGREEMENT, FOR ANY BREACH OR FOR ANY CLAIM, SHALL NOT EXCEED THE AMOUNT OF SUBSCRIPTION SERVICE FEES ACTUALLY COLLECTED BY TEAL MEDIA FROM CUSTOMER UNDER THIS AGREEMENT.
- Indemnification.
- Customer Use Indemnity. Customer shall defend at its own expense any suit, action or proceeding brought against Teal Media by a third-party based on any claim arising in connection with Customer’s direct or indirect use of the Subscription Services (a “Use Action”), and Customer shall pay all damages incurred by Teal Media in such Use Action, or those damages agreed to in a settlement of such Use Action, along with all reasonable attorney’s fees incurred in connection therewith. Teal Media will (a) notify Customer promptly in writing of each such Use Action, (b) tender to Customer sole control of the defense or settlement of each such Use Action at Customer’s expense, and (c) cooperate and, at Customer’s expense, assist in such defense. Teal Media will have the right to participate at its own expense in any such Use Action or related settlement negotiations using counsel of its own choice.
- Essential Basis of Bargain. Customer acknowledges and agrees that the Subscription Service Fees charged by Teal Media in this Agreement reflect the overall allocation of risk between the Parties, including by means of the provisions for limitation of liability and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the Parties and a modification of such provisions would affect substantially the Subscription Service Fees charged by Teal Media hereunder.
- Confidential Information.
- Definition. In the course of providing the Subscription Services, either Party (a “Disclosing Party”) may provide certain of its Confidential Information to the other Party (a “Receiving Party”). For purposes of the Agreement, “Confidential Information” will mean written, confidential and proprietary information of a Disclosing Party that is not available in the public domain. Except with written consent, a Receiving Party agrees that it will not disclose Confidential Information to any third party other than its affiliates with a legitimate need to know such information and will use the Confidential Information only in connection with the Subscription Services. All Disclosing Party Confidential Information will remain the property of the Disclosing Party. For purposes of the Agreement, software, documentation, other materials or tools used by Teal Media in the performance of the Subscription Services, including Teal Media Intellectual Property (as defined in Section 11.2) will be considered Teal Media’s Confidential Information. Confidential Information will not include information that (a) is previously known to a Receiving Party; (b) is acquired by the Receiving Party without continuing restriction on use; or (c) becomes or is publicly available through no breach by a Receiving Party under this Agreement or any other agreement between the Parties. The foregoing obligation regarding Confidential Information will survive the termination or expiration of this Agreement.
- Obligations. The Receiving Party agrees and acknowledges that Confidential Information of the Disclosing Party is entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining and safeguarding the secrecy of its Confidential Information. The Receiving Party agrees that during the term of this Agreement and at any time thereafter, it (a) will use the same level of care to protect the confidentiality of the Disclosing Party’s Confidential Information as it does to protect its own Confidential Information, but in no event less than a reasonable degree of care, (b) will not use any Confidential Information of the Disclosing Party except for the purpose of fulfilling its obligations under this Agreement, (c) will not, and will not permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Confidential Information of the Disclosing Party available to others without the prior written consent of the Disclosing Party, and (d) will not remove, or permit to be removed, any notice indicating the confidential nature of, or the proprietary rights of the Disclosing Party in, the Disclosing Party’s Confidential Information. The Receiving Party will return all Confidential Information at the earlier of the termination of this Agreement or upon the request of the Disclosing Party.
- Subpoena or Order. If the Receiving Party receives service of a subpoena or order or other compulsory instrument issued by or under the authority of a court of competent jurisdiction or by a governmental agency that requests all or any part of the Confidential Information, the Receiving Party will: (a) provide the Disclosing Party with prompt written notice of the existence, terms, and circumstances surrounding such request or requirement; (b) consult with the Disclosing Party on the advisability of taking steps to resist or narrow that request; (c) if disclosure of Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised in writing by its counsel is legally required to be disclosed; and (d) cooperate with the Disclosing Party in the Disclosing Party’s efforts to obtain an order excusing the Confidential Information from disclosure, or an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed.
- Separate Confidentiality Agreements. Nothing in this Agreement shall negate or mitigate any obligation of confidentiality between the Parties pursuant to any separate, written confidentiality agreement executed by the Parties.
- Proprietary Rights.
- License to Use Archie Platform. This Agreement is NOT a work-for-hire Agreement. Rather, during the Term of this Agreement and upon expiration of this Agreement, the Archie Platform framework established by Teal Media shall remain at all times the sole property of Teal Media. So long as Customer is not in breach of this Agreement, Teal Media grants Customer with a limited license to use the Archie Platform during the Initial Term and any Renewal Term so long as Customer.
- Customer Contents. Customer is required to provide content to Teal Media, including without limitation text, photos, images, audio, video, code and any other materials (“Customer Content”). Customer Content remains the property of Customer, except for the limited rights that enable Teal Media to provide, improve, promote and protect the Subscription Services as described in this Agreement. Customer Content includes without limitation content Customer’s post to the Archie Platform Microsite (including scheduling pages) which Customer uses.
- Only Use Content Customer Has a Right to Use. Customer represent and warrant to Teal Media that it owns all rights to Customer’s Content or otherwise have (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license Customer’s Content via the Subscription Services and in the manner set forth in this Agreement. If Teal Media places Customer’s Content in an Archie Platform in the ways described in this Agreement, Customer represents and warrants to Teal Media that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Subscription Services may be protected by others’ intellectual property, trade secret or other rights. Customer shall not upload, download or share Content unless Customer have the right to do so.
- Customer’s License To Teal Media. When Customer provides Content to Teal Media, Customer is deemed to grant Teal Media (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes Teal Media may make so that Customer’s Archie Platform works better with the Subscription Services), communicate, publish, publicly display, publicly perform and distribute Customer’s Content for the limited purposes of allowing Teal Media to provide, improve, promote and protect the Subscription Services and the Archie Platform. This Section does not affect any rights Customer may have under applicable data protection laws.
- Customer’s End Users Are Customer’s Responsibility. Customer’s Archie Platform may have their own visitors, customers and users (“End Users”). Customer understands and agrees that (a) Customer’s Archie Platform and Customer’s End Users are Customer’s responsibility; (b) Customer is solely responsible for providing products, services and support to Customer’s End Users; and (c) Customer is solely responsible for compliance with any laws or regulations related to Customer’s Archie Platform and/or Customer’s End Users. Teal Media shall not liable for, and won’t provide Customer with any legal advice regarding, Customer’s Archie Platform or Customer’s End Users.
- HIPAA Enabled Accounts. If Customer’s use of the Archie Platform requires Customer to comply with industry-specific regulations applicable to such use, such as HIPAA, Customer will be solely responsible for such compliance, except to the extent Teal Media has agreed with Customer in writing otherwise. Customer is not permitted to use the Subscription Services in any way that would subject Teal Media to such industry-specific regulations without obtaining Teal Media’s prior written agreement. For example, Customer may not use any Subscription Services to collect, use, disclose, protect or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under US federal regulations) unless Customer’s account for such Subscription Services is designated as HIPAA-enabled and Customer enter into a separate business associate agreement with Teal Media.
- Third Party Sites. The Subscription Services may contain links to third party sites. When Customer access third party sites, Customer does so at Customer’s own risk. Teal Media does not control and aren’t liable for those sites and what those third parties do
- Customer’s Content. The Subscription Services or sites created using the Subscription Services may contain Customer’s Content: (a) that is offensive or objectionable; (b) that contains errors; (c) that violates intellectual property, trade secret, privacy, publicity or other rights or the good name of Customer or third parties; (d) that is harmful to Customer’s or others’ computers or networks; (e) that is unlawful or illegal; or (f) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. By operating the Subscription Services, Teal Media don’t represent or imply that Teal Media endorse Customer’s or other users’ Customer’s Content, or that Teal Media believe such Customer’s Content to be accurate, useful, lawful or non-harmful. Teal Media is not a publisher of, and Teal Media is not liable for, any Customer’s Content uploaded, posted, published or otherwise made available via the Subscription Services by Customer or other users. Customer is responsible for taking precautions to protect Customer, Customer’s accounts, and Customer’s computer or network, from Customer’s Content accessed via the Subscription Services.
- Teal Media Intellectual Property. The Parties acknowledge and agree that Teal Media may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property owned by Teal Media or its agents to create or establish a Archie Platform for Customer (collectively referred to as “Teal Media Intellectual Property”) in the performance of the Subscription Services and creation of Archie Platform. Customer agrees that any and all proprietary rights to Teal Media Intellectual Property, as it existed as of the date hereof and as it may be modified in the course of providing the Subscription Services, including but not limited to, the Archie Platform itself, all patents, copyrights, trademarks, and trade secret rights, to the extent they are available, are the sole and exclusive property of Teal Media, free from any claim or retention of rights thereto on the part of Customer, and Customer hereby assigns to Teal Media any rights it may have in any of the foregoing Teal Medial Intellectual Property.
- Important Things Teal Media Can Do. Teal Media reserves these rights, which may exercise at any time and in our sole discretion, and without liability or notice to Customer (except where prohibited by applicable law): (a) Teal Media may change parts or all of the Subscription Services and their functionality; (b) Teal Media may suspend or discontinue parts or all of the Subscription Services; (c) Teal Media may terminate, suspend, restrict or disable Customer’s access to or use of parts or all of the Subscription Services; (d) Teal Media may terminate, suspend, restrict or disable access to Customer’s accounts or parts, some or all of Customer’s Archie Platform; and (e) Teal Media may change our eligibility criteria to use the Subscription Services (and if such eligibility criteria changes are prohibited by law where Customer resides, Teal Media may revoke Customer’s right to use the Subscription Services in that jurisdiction).
- Ownership Disputes. Sometimes ownership of an Account or site is disputed between parties, such as a business and its employees, or a web designer and a client. Teal Media tries not to get involved in these disputes. However, Teal Media reserves the right, at any time and in our sole discretion, and without notice to Customer, to determine rightful Account or site ownership and to transfer an Account or site to such owner. Our decision in that respect is final. If Teal Media feels that Teal Media can’t reasonably determine the rightful owner, Teal Media reserves the right to suspend an Account or site until the disputing parties reach a resolution. Teal Media also may request documentation, such as a government-issued photo ID, credit card invoice or business license, to help determine the rightful owner.
- Restrictions. Customer will not copy, use, modify, or distribute any Teal Media Intellectual Property except as expressly licensed in this Agreement. Customer will not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of Teal Media Intellectual Property except as expressly licensed in this Agreement. Customer will not alter, change, or remove from Teal Media Intellectual Property any identification, including copyright and trademark notices, and further agrees to place all such markings on any copies thereof.
- Customer Responsibilities.
- Provision of Materials and Work Spaces to Teal Media. Customer will provide Teal Media with timely access to the information and materials regarding Customer that is necessary for Teal Media to perform the Subscription Services. Customer will be responsible for ensuring that the materials provided to Teal Media do not infringe or violate the rights of any third party. Customer shall and shall be responsible for maintaining adequate backup for all data and other items furnished to Teal Media. For Subscription Services to be provided at a Customer location, Customer shall provide appropriate and safe work spaces for the applicable Teal Media personnel.
- Timeliness. Any timetable in a SOW is dependent on timely receipt from Customer of all necessary items and authorizations to be supplied by it.
- Software Installation or Replication. If Teal Media is required to install or replicate Customer software as part of the Subscription Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to Teal Media will be deemed Customer’s affirmative acknowledgment to Teal Media that Customer has a valid license that permits Teal Media to perform the Subscription Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless Teal Media in a written SOW expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless Teal Media against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to Teal Media or any Customer breach of this Section 12.3. Within all SOWs for the creation of a Archie Platform, Teal Media will include a description of any third-party software licenses that Customer must possess as of the date of the SOW to legally use the Archie Platform as contemplated within the SOW. However, Teal Media is not responsible for identifying any third-party software license requirements for use of any Archie Platform in conjunction with Customer systems not specifically identified within the SOW directly relating to the creation of the Archie Platform.
- Non-solicitation. During the term of this Agreement and for twelve (12) months thereafter, Customer shall not, directly or indirectly through another party, (a) solicit for employment or engagement as an independent contractor, or (b) employ or engage as an independent contractor, any person who is or was an employee or contractor of Teal Media during the twelve (12) month period prior to any such actions, without the prior written consent of Teal Media.
- Dispute Resolution. In the event of any controversy or claim arising from or related to this Agreement, its performance or its interpretation, Teal Media and Customer will in good faith attempt to resolve the dispute within a reasonable period among themselves. Failing such attempt, any controversy or claim arising out of or relating to this Agreement, or the breach thereof will be settled by arbitration in Oakland County, State of Michigan administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- General.
- Export. Customer shall comply fully with all relevant export laws and regulations of the United States of America (“Export Laws”) to assure that any Archie Platform is not (a) exported, directly or indirectly, in violation of Export Laws; or (b) intended to be used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation.
- Notice. All notices under this Agreement, including notices of address change, will be in writing and will be deemed to have been given when sent by any one of the following: (i) by registered or certified mail, return receipt requested, or (ii) a nationally recognized overnight delivery service (such as Federal Express), to the general counsel of the appropriate Party at the relevant address first listed in this Agreement, or to a Party’s address as changed in accord with this Section 14.2, or (iii) by electronic mail or facsimile. Teal Media’s general counsel is Steven Nofar, Esq. (Direct: 248-268-8600 or [email protected]).
- Legal Expenses. In the event legal action is taken by either Party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorneys’ fees and court costs, will be paid by the non-prevailing Party.
- Publicity. Customer grants to Teal Media a perpetual use of Customer’s name, domain name(s), logo, trademark, service mark, any work for hire (if applicable) or Archie Platform(s) contemplated in this Agreement or SOWs for the sole purpose of Teal Media publicizing its portfolio of clients and examples of its work-product and services to others (“Teal Media Client Portfolio Reference”). Customer acknowledges that Teal Medial may use the Teal Media Client Portfolio Reference in various formats and media, including without limitation, Teal Media’s marketing materials, Teal Media’s website, slide presentations and other formats and media as determined appropriate by Teal Media.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining portions or provisions will remain in full force and effect.
- Governing Law. This Agreement, and all matters arising under or related hereto, will be governed according to the laws of the State of Michigan, without respect to its conflict of law principles. Jurisdiction shall be Oakland County, State of Michigan.
- Waiver. No failure on the part of either Party to exercise, and no delay in exercising, any right, power, or privilege will operate as a waiver thereof; nor will any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
- Assignment. Except for Customer’s assignment of right to the Teal Media Intellectual Property, Customer shall not assign, by operation of law or otherwise, this Agreement or any right or duty arising hereunder to a third party without Teal Media’s prior written consent. Any purported assignment in violation of this Section 14.8 shall be deemed void. Notwithstanding the foregoing, Teal Media may assign this Agreement and its rights and obligations hereunder, without the prior consent of Customer, in Teal Media’s sole and complete discretion to a successor entity in the event of an acquisition of Teal Media, whether by stock or asset purchase, corporate restructuring, or the like.
- No Third-Party Beneficiaries. This Agreement is an agreement between the Parties and confers no rights upon any of the Parties’ employees, agents, or contractors or upon any other person or entity.
- Construction.
- All references in this Agreement to “Articles,” “Sections” and “Exhibits” refer to the articles, sections and exhibits of this Agreement.
- As used in this Agreement, neutral pronouns and any variations thereof will be deemed to include the feminine and masculine and all terms used in the singular will be deemed to include the plural, and vice versa, as the context may require.
- The words “hereof,” “herein” and “hereunder” and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented, and not to any subdivision contained in this Agreement.
- The word “including” when used herein is not intended to be exclusive and means “including, but not limited to.”
- Each of the Parties and their counsel have carefully reviewed this Agreement, and, accordingly, no rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting party will apply in the interpretation of this Agreement.
- The article and section headings and titles appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement or the interpretation hereof.
- Force Majeure. Except with regard to any obligation to pay money hereunder, neither Party hereto will be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such Party’s control. If any such contingency does occur, the time to perform an obligation under this Agreement affected thereby will be deemed extended by the length of time such contingency continues.
- Entire Agreement. This Agreement together with the SOWs, which are hereby incorporated herein by this reference, contain all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. To the extent there is any inconsistency between a term of this Agreement and a term of any SOW, the terms and conditions of this Agreement will govern and supersede any SOW with regards to the performance of Subscription Services thereunder.
- Modification. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party (including a SOW) that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement. Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this Section 14.10.
Additional Terms
Subscription fee
The setup fee includes 12 months of service. After 12 months, the subscription fee is $100 per month.
Standard Usage
As part of your Archie Platform service, Customer is allotted the following traffic, data and storage usage:
- Up to 25,000 visits per month
- Up to 2GB of storage
- Up to 10GB of file transfers per month
If you exceed your monthly visits allotment, we will increase your allotment of monthly visits by increments of 25,000 visits at a rate of $50 per 25,000 visits.
The total monthly overage will be calculated at the end of each month and invoiced.
Teal Media will not disrupt service in cases of minor overages and will alert you of additional costs that may be incurred. Overage costs are calculated based on fees accrued by Teal Media to sustain the overage occurrences.
In cases of extreme overages, large volume of concurrent users, or severe malicious activity the site may be taken down to mitigate platform-wide disruption.
In cases of severe malicious activity (such as DDOS attack), costs associated with mitigating the malicious activity will be billed to the customer. Costs may include personnel time ($185/hr) as well as costs associated with 3rd party services and vendors needed to mitigate the activity. If customer is unwilling to pay costs associated with mitigating malicious activity, the site will be disabled on the platform and no refund of the setup fee will be provided.
Performance CDN Add-on
Suitable for Archie sites that expect periodic large spikes in traffic. Performance CDN also helps mitigate overage costs due to high traffic volumes as well.
- May be added on a month to month basis and does not have to remain active during your entire Archie Platform contract term. Notice of termination of the Performance CDN must be given 5 business days in advance and monthly fees are not prorated.
- Subdomains are considered a unique domain and would need their own Performance CDN add-on as well if desired.
- Performance CDN raises your standard monthly usage threshold for visits from 25,000 per month to 300,000 per month. Additional visits will be billed at our standard overage rate of $50 per 25,000 visits.
Use of Analytics
Teal Media uses Google Analytics to monitor Archie sites for internal reporting on platform usage, performance and to optimize the Archie Platform. Customer’s usage data will never be sold, provided to a third party or used in any other capacity.
Attribution
Teal Media will include an attribution and link to tealmedia.com in the footer.
Uptime
Occasionally it will be necessary to take the platform offline to perform system maintenance and upgrades. Teal staff will only perform planned maintenance during off-peak hours, reserving ad-hoc maintenance for more urgent situations.
Off-Boarding
If you decide to terminate your Archie Platform subscription, upon request we will provide a XML backup of your pages, posts, actions, resources and news content. Additionally, we will provide a ZIP file containing all media uploads. If at a later date you decide to reinstate the subscription, a one-time reinitiation fee of $200 will apply.
Project Assumptions
- All copy and other site content will be provided and populated by the client.
- Estimates assume up to two rounds of revisions on project deliverables (website, social graphics and email template). Additional revisions will be billed at our hourly rate of $185/hr.
- Teal will provide up to 10 hours for custom illustrations. Additional time will be billed at our hourly rate of $185/hr.
- Timeline is an estimate only, pending your team’s availability, the amount of time your team requests to review project deliverables and the number of revisions for each deliverable.
- If a Customer deliverable — such as input, approval, or payment — is late more than 10 business days the project will be considered “on hold.” Once the deliverable is received and the project is reactivated it will be rescheduled based on Teal Media’s current workload and availability.
- Customer will be billed at-cost for any custom stock imagery used in the design deliverables.
- Any requests outside of normal weekday business hours will be billed at our rush rate of $370/hr.
- Social templates will be shared via Canva and the email template will be shared via Mailchimp. If Additional formats are needed, they will be provided on a time and materials basis at our hourly rate of $185/hr.
- The Archie Platform website will be optimized for the modern browsers, as well as iPad, iPhone, and Android.
- Customer will be responsible for all costs related to 3rd party systems and domain registration.
Last updated 9/8/21.