TERMS AND CONDITIONS

Payment Terms

     a. Arch needs to be paid in full before the beginning of advertising period

     b. Prorated First Month

We prefer to begin your advertising term on the first day of the month, however, if your advertising term begins any day other than the first of the month, we will prorate you by reducing the price by the number of days that have lapsed based on a 30 day month. We always end advertising terms on the last day of the month.

     D. Late Fees. 

If Advertiser fails to pay any installment due pursuant to this Agreement on or before the first day of any month such payment becomes due (“Late Installment”), then Advertiser shall incur a late payment fee each and every day such installment remains unpaid (“Daily Late Fee”). The Daily Late Fee shall be calculated by prorating the total amount of the Late Installment over a 30 day month and accrue each and every day until Advertiser pays the amount of the Late Installment plus any accrued Late Fees until the date of payment. The Late Fee shall be deemed to be immediately due and payable without demand, invoice or notice of any kind.

Advertisements.  

     a. Advertiser shall provide and deliver to Arch the artwork and other material to be displayed (“Advertising Material”) on the Sign at least ten (10) days prior to the scheduled contract start date.


     b. All Advertising Material must meet the technical and display specifications contained on Arch’s website, which can be accessed at www.archgateways.com/displayspecs, and may be amended from time to time by Arch without the consent of Advertiser.   In the event Arch amends Exhibit A to this Agreement, it is Advertiser’s sole responsibility to provide Arch with revised or replacement Advertising Material to meet the amended technical and display specifications.  Arch shall have no liability for any service interruptions as a result of changes to the technical and display specifications for the Sign.


     c. Arch may refuse to display any Advertising Material for any reason, including, without limitation, if such Advertising Material is offensive, deceptive, misleading, of insufficient quality, is illegible or inappropriate, all in Arch’s sole discretion, without any liability to Advertiser and without any obligation to refund any monies previously paid by Advertiser.

Service Interruptions.  


     a.  Arch shall not be liable and shall not be held in breach of this Agreement and Advertiser shall not be entitled to any damages, refunds or credits for any service interruptions that result from: (i) an act of force majeure, act of god, natural or  disaster, power outages or destruction of the Sign (ii) governmental action, order or demand, whether in times of emergency or otherwise, (iii) upon receipt of a cease and desist letter, or similar demand, from any third party asserting that the Advertising Material infringes upon the trademark, copyright or other intellectual property rights of a third party, (iv) Advertiser’s failure to deliver the Advertising Material to Arch in a timely manner pursuant to Section 2(a), (v) Advertiser’s failure to revise or replace the Advertising Material pursuant to Section 2(b), (vi) Advertiser’s failure to pay any fees, costs or Late Fees when due pursuant to this Agreement, or (vii) for any other reason, except as set forth below in section 3(b).


     b. Except as provided in Sections 2(a), 2(b) and 3(a), if display of the Advertising Material is interrupted due to technical issues with the Sign, Arch shall have a grace period of six (6) hours, commencing when Arch acquires actual knowledge of the service interruption, to restore the Sign to working order.  If the service interruption persists for more than six (6) hours, Advertiser shall be given a credit for the time of the service interruption and such credit shall be prorated based on a thirty (30) day calendar month and twenty four (24) hour day.  


Advertiser’s Representations, Warranties and Covenants. 

Advertiser represents and warrants to Arch that (i) Advertiser has the sole and exclusive rights to any trademarks, logos, designs, names, copyrights and, generally to use the Advertising Material, (ii) if Advertiser is an Agency acting on behalf of Advertiser, he/she/it represents and warrants that it is authorized to enter into this Agreement on behalf of and as the Agent of Advertiser, (iii) if Advertiser is an Agency acting on behalf of Advertiser, Agency covenants and agrees to guaranty all of Advertiser’s obligations hereunder, including obligations for payment, and acknowledges that Arch would not have entered into this Agreement without such guaranty.


Default.  

The occurrence of any of the following shall be an Event of Default pursuant to this Agreement: (a) The failure by Advertiser to make any payment, including payment of any Late Fees, when due; (b) the failure by Advertiser to perform its obligations pursuant to Section 3(a) or 3(b) of this Agreement; (c) the receipt by Arch of a cease and desist letter, or similar demand, from any third party asserting the Advertising Material infringes upon the trademark, copyright or other intellectual property rights of a third party; (d) the insolvency of or the execution of an assignment for the benefit of creditors of Advertiser, the filing of a petition in bankruptcy by or against the Advertiser or the dissolution, conversion or merger of Advertiser; (e) upon Advertiser’s assignment, or its notice to Arch of its intent to assign, any of Advertiser’s rights or obligations pursuant to this Agreement; (f) the breach by Advertiser of  any other agreement by and between Arch and Advertiser; (g) the Advertiser terminates this Agreement prior to the Contract End Date identified in Article II; and (h) Advertiser’s breach of any other obligation, representation, or covenant contained in this Agreement.


Rights/Remedies Upon Default. 

Upon the occurrence of an Event of Default, Arch shall have the right, at its option, to terminate this Agreement by providing written or oral notice to Advertiser and all accrued but unpaid charges shall become immediately due and payable by Advertiser.  Upon termination, in addition to any accrued but unpaid charges due Arch pursuant to this Agreement, Advertiser shall pay to Arch, as liquidated damages and not as a penalty, an amount equal to thirty five percent of the outstanding contract price or five hundred dollars ($500.00), whichever is greater.  Advertiser acknowledges and agrees that such liquidated damage clause is necessary due to the substantial damages that would be incurred by Arch and the difficulty in ascertaining the same.  If this Agreement is for the Premier Package, Arch shall refund Advertiser any amounts in excess of the sum of the accrued charges and liquidated damages within sixty (60) days of receipt of written notice from Advertiser of its intent to terminate.


Other Termination.

  Advertiser may terminate this Agreement upon thirty (30) days written notice to Arch, however, such termination is an Event of Default under Section 6(g) entitling Arch to the rights and remedies in Section 7.  Arch may terminate this Agreement upon five (5) days written or oral notice to Advertiser.  If terminated by Arch and no Event of Default has occurred, Arch shall refund any paid but not yet accrued charges pursuant to this Agreement.


Indemnification. 

Advertiser, its shareholders, members, officers, directors or managers, shall indemnify and hold Arch harmless from and against any and all losses, liabilities, damages, costs expenses (including reasonable attorneys’ fees and disbursements and any reasonable attorneys’ fees and disbursements incurred either in establishing liability under this indemnity provision or in collecting the amounts payable hereunder) sustained or incurred by Arch as a result of any claim or threatened claim by any third party that any Advertising Material infringes upon any trademark, copyright or other intellectual property rights of a third party.  Advertiser shall give immediate written notice of such claim to Arch and promptly make available to Arch all information and particulars in their possession or control which will assist Arch in defending or otherwise dealing with such claim or suit and will provide any other assistance reasonably required to defend the claim or suit.  Arch, in its sole discretion, may take over the direction and control of the defense of any suit to which it is a party, authorize Advertiser to conduct their own defense, or jointly defend the suit with Advertiser.  Any defense conducted by Arch shall be at the expense of Advertiser and Advertiser shall indemnify Arch for any such costs in accordance with this Section 9.


No Liability. 

Advertiser acknowledges that Arch has not and does not make any expressed warranties, and Arch hereby disclaims any and all implied warranties, if any, related to the services contemplated by this Agreement or the effectiveness or visual quality of the Advertising Material displayed on the Sign.  Arch shall not be in any way liable for any services or display that Advertiser deems unsatisfactory. Arch shall have no liability to Advertiser and Advertiser hereby releases Arch from any and all claims or losses, AND WHETHER CAUSED BY ARCH’S NEGLIGENCE, with respect to this Agreement.


Assignment. 

Advertiser may not assign this Agreement without Arch’s prior written consent and Advertiser’s failure to obtain Arch’s consent is an Event of Default.  Arch may assign this Agreement without the consent of Advertiser.


Notices. 

All notices to be given under this Agreement by either party shall be in writing, except as specifically stated otherwise, and shall be deemed to have been given when personally delivered with receipt acknowledged or mailed by certified or registered mail, return receipt requested, postage prepaid, at the address set forth on the first page of this Agreement.


Entire Agreement/Governing Law. 

This Agreement is the entire agreement between Arch and Advertiser relating to the subject matter hereof, and supersedes all prior agreements between the parties.  This Agreement may not be amended except in a writing signed by Arch and Advertiser. This Agreement shall be governed by New York Law without regard to conflict of laws rules.  The Parties hereby agree to submit to the exclusive jurisdiction of the state and federal courts located in Broome County, New York.


Severability. 

In the event that any provision of this Agreement, or the application of any such provision to any person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
Binding Effect/No Third-Party Beneficiaries.  This Agreement shall be binding upon and inure to the benefit of the Parties’ respective successors and permitted assigns, and if Advertiser is an Agency acting on behalf thereof, Agency shall be bound by all obligations of Advertiser as if one in the same.  


Counterparts. 

This Agreement may be executed in two or more counterparts, including by electronic signature or other electronic format, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.


Captions. 

The captions of the Sections of this Agreement are for the purpose of convenience only, are not intended to be part of this Agreement and shall not be deemed to modify, explain, enlarge or restrict any of its provisions.