Effective as of January 1, 2019
“Statement(s) of Work” means the documents (as exemplified in Exhibit A) for Teak Services hereunder that are entered into between Teak and Customer from time to time, including amendments and addenda thereto executed in accordance with the provisions of this Agreement.
“Teak Services” means the Teak backend services, dashboard and any custom services and analysis services ordered by Customer under a Statement of Work, and made available by Teak online via the customer login link at [http://www.teak.io] and/or other web pages designated by Teak, including any data that Teak makes available to Customer, such as reports, summaries, graphs or charts, and any associated offline components. For clarity, Teak Services will only include services authorized by Statements of Worked that are authorized by Customer’s chief marketing officer and appropriately executed by Customer.
“User” means an individual who is authorized by Customer to use the Teak Services on behalf of Customer, and for whom a subscription to the Teak Services has been purchased and a User Account issued. Users may include but are not limited to employees and owners of Customer, and third parties (such as consultants, contractors and agents) who use the Teak Services exclusively for the Customer’s behalf.
“User Account” means a unique account accessible by a user name and password and assigned to a User.
“Player” means an individual who engages with Customer’s application.
“Daily Active Player” means a Player who engages with Customer’s application at least one time during a calendar day.
Subject to the terms and conditions contained in this Agreement, Teak will make the Teak Services available to Customer pursuant to this Agreement and the relevant Statements of Work during a subscription term, as more particularly described in this Agreement. Teak shall provide the Teak Services on Teak’s servers, and shall use commercially reasonable efforts to make the Teak Services available to Customer twenty-four hours a day, seven days per week, three hundred sixty-five days per year, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Teak shall make reasonable efforts to perform service and maintenance to the Teak Services outside peak usage hours. Customer acknowledges that availability of the Teak Services may be affected by: (a) telecommunication network activity or capacity; (b) hardware failures; and/or (c) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Teak Services requirements. Teak disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure and/or compatibility.
Teak reserves the right to change the Teak Services (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered.
Teak shall provide Customer with reasonable customer support and maintenance for the Teak Services. Customer support requests will be replied to within 24 hours of receipt.
Teak shall have the right in its sole discretion to remove or block from the assets it publishes to consumers any text, images, artwork, technology and other content, data, information, materials and other items provided or made available to Teak by Customer (“Customer Materials”) at any time where (a) such Customer Materials violate applicable laws, regulations, or orders; (b) removal or blocking is necessary to protect the safety, security or integrity of the Teak Services, Teak, or any third party; or (c) in order to respond to law enforcement or any other governmental authority; provided that Customer Materials may not be modified in any way and any presentation that incorporates such materials must be removed entirely or not at all. Teak shall use commercially reasonable efforts to minimize the impact and duration of any such removal or blocking.
Customer shall cause all Users to create a User Account to have access to the Teak Services. Teak reserves the right to make use of various authentication mechanisms, including third-party services, which might have different, complimentary, and/or additional user agreements, requirements, and policies. Teak has the right to suspend or terminate any User Account and refuse any and all current or future use of the Teak Services (or any portion thereof) to anyone that provides false or inaccurate data. Each User is entirely responsible for the security and confidentiality of such User’s password and User Account. Customer and each User are entirely responsible for any and all activities that occur under that User’s User Account. Customer shall immediately notify Teak of any unauthorized use of a User’s User Account or any other breach of security of which Customer becomes aware.
Customer shall: (i) be responsible for compliance with this Agreement by its personnel and Users; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Teak Services, User passwords and User Accounts, and notify Teak promptly of any such unauthorized access or use of which it becomes aware; and (iii) use the Teak Services only in accordance with applicable laws and government regulations (including without limitation, anti-spam and unsolicited email laws). Further, Customer shall not access the Teak Services in order to: (a) systematically access the Teak Services using “bots” or “spiders”, or attempt to gain unauthorized access to the Teak Services or their related systems or networks.
Customer assumes sole responsibility for: (a) the Customer Materials; (b) ensuring that the Customer Materials do not infringe or violate any right of any third party; and (c) ensuring that the Customer Materials comply with the platform policies of any third parties the Customer interacts with via the Teak Services.
Teak hereby grants Customer a limited, royalty-free, non-transferable license during the applicable subscription term to use, access, and input data into the Teak Services for Customer’s internal use.
Customer shall not: (a) sell, license, resell, rent, lease, distribute or make available to third parties the Teak Services except as expressly described in accompanying Statements of Work; (b) create derivative works of the software, program code or user interfaces comprising the Teak Services; (c) copy, frame or mirror the online Teak Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes; (d) disassemble, reverse engineer or decompile the Teak Services or otherwise derive source or object code from the Teak Services or any elements thereof; (e) knowingly use the Teak Services to store or transmit infringing, libelous, obscene, threatening, or otherwise unlawful or tortious material, including without limitation material harmful to children or material that knowingly violates third party intellectual property or privacy rights; (f) submit any sensitive, individually identifiable information to the Teak Services, including but not limited to social security numbers, government-issued identification card numbers, financial account numbers (including credit or debit card numbers and any related security codes or passwords), health-related or medical information, health insurance identification numbers, and information in a health insurance application or claims history; (g) knowingly use the Teak Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; or (h) interfere with or disrupt the integrity or performance of the Teak Services.
Customer hereby grants to Teak a worldwide, non-exclusive, royalty-free, license for the Term, to use, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all Customer Materials solely for the purposes of providing and operating the Teak Services. The license is non-sublicensable except to third parties to whom Teak has delegated its responsibilities hereunder and who are approved by Customer in writing (e.g., technology partners, service providers and independent contractors).
Teak shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Teak Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the operation of the Teak Services provided that such suggestions, ideas, enhancement requests, feedback, recommendations or other information is not otherwise protected intellectual property of Customer (e.g., information protected by patents).
As between Teak and Customer, Teak is the sole and exclusive owner, and will retain all right, title and interest in and to the Teak Services (excluding any portion of the Teak Services comprised of or derivative of the Customer Materials), including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing. As between Teak and Customer, Customer is the sole and exclusive owner, and will retain all right, title and interest in and to the Customer Materials, including all specifications, documentation, technical information, or corrections or derivatives thereof.. Each Party grants no rights other than those explicitly granted herein, and the licensee of such rights shall not exceed the scope of its license granted hereunder. All techniques, know-how, software, algorithms and methods or rights thereto owned by Teak at the time this Agreement is executed, developed by Teak during the course of the design, hosting, and provision of the Teak Services shall be and remain the property of Teak.
Customer shall pay all fees specified in all Statements of Work hereunder (“Fees”). Customer shall pay Teak the Fees in U.S. funds within 30 days from receipt of the invoice. If Customer fails to pay the Fees within 30 days of the due date, Teak may so notify customer in writing. If Customer fails to pay all undisputed fees due within ten (10) days of receiving such notice, Teak may impose a late fee, suspend the Teak Services, or both, in its discretion.
Customer shall pay or reimburse Teak for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of the performance by Teak under this Agreement; excluding, however, taxes measured by Teak’s profits, its overall sales, employment and similar taxes incurred in connection with persons performing services for Teak, and property or other taxes measured in whole or in part by the value of Teak’s assets.
This Agreement commences on the Effective Date and continues until all Statements of Work under this Agreement have expired or been terminated.
Subscriptions under this Agreement commence on the effective date specified in the applicable Statement of Work and continue for the subscription term specified therein.
Customer may terminate this Agreement and, unless otherwise set forth in the Statement of Work, any Statement of Work, at any time for any reason or no reason by providing at least 30 days’ prior written notice.
Either party may terminate this Agreement (a) upon the material breach of the other party, provided that the breaching party shall have thirty (30) days to cure such breach following written notice; (b) upon the cessation of business by either party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a party, which in the case of an involuntary petition the party shall have sixty (60) days in which to vacate such petition; or (c) upon the failure by Customer to pay any undisputed amount due hereunder after the notice and cure period set forth in Section 6(1).
Upon any termination or expiration of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 1, 5, 6, 7, 8, 9,10, 11 and 12 will survive the termination or expiration of the Agreement, (b) Customer shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement, and (c) Customer may retain and continue to use all reports and files downloaded by Customer from the Teak Services prior to the effective date of termination or expiration of the Agreement, subject to the restrictions on use and disclosure set forth in this Agreement.
Each party represents and warrants to the other party that (a) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound; and (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Teak represents and warrants that the use by Customer of the products and services provided hereunder will not infringe the rights of any third party.
Teak agrees to indemnify and hold harmless Customer (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Customer Indemnified Parties”) against any cost, claim, liability or expense any of the Customer Indemnified Parties incur as a result of or arising out of or related to: (a) Teak’s breach of this Agreement or of Teak’s warranties, covenants and representations made hereunder; (b) Teak’s willful, negligent, tortuous or criminal acts or omissions; (c) any improper use of Customer’s Confidential Information; and (d) Teak’s violation of any third party rights. The applicable Customer Indemnified Party shall provide Teak written notice of any claim for which it seeks indemnification under this Section.
Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other’s Confidential Information. Each party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. Each party shall use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors to sign a non-disclosure agreement before obtaining access to the other party’s Confidential Information and such other measures as the party takes to protect its Confidential Information or trade secrets in the course of its business. “Confidential Information” means information in the possession or under the control of a party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine-readable form, Customer Materials, source code and information pertaining to usage and design of the Teak Services, and the terms and conditions of this Agreement.
The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
Because of the unique nature of each party’s proprietary materials, each party understands and agrees that the other party will suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section 10, and that monetary damages may be inadequate to compensate for such breach. Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this Agreement against any actual or threatened breach of this Section 10.
The Teak Services are made available by Teak to Customer “AS IS” and “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” Other than the warranties specifically set forth herein, Teak makes no representation or warranty of any kind, express or implied, as to the condition, character, nature, capability, performance, availability, suitability, source or any other characteristic of the Teak Services or any portion thereof. Teak HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TEAK FURTHER DISCLAIMSANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR ANY WARRANTY THAT THE TEAK SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.
EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (C) GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TEAK SERVICES, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE GREATER OF $500 OR THE AMOUNTS PAID BY AND DUE FROM CUSTOMER FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE.
This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Oregon, without regard to its conflict of laws provisions. If federal jurisdiction exists, the parties consent to exclusive jurisdiction and venue in the federal courts in Multnomah County, Oregon. If Federal Jurisdiction does not exist, the parties consent to exclusive jurisdiction and venue in the state courts of Multnomah County, Oregon. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” This Agreement, including all Statements of Work, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Statement of Work, the terms of the body of this Agreement shall prevail except to the extent that the body of this Agreement or the Statement of Work expressly provides that a particular section of the Statement of Work takes precedence over a particular section of the body of this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document signed by authorized signatories of both parties subsequent to the date of execution of this Agreement. This agreement may not be assigned by Teak.io, Inc under any circumstances, including the circumstances of a change of control, merger or acquisition, without the written authorization of Customer.