Tree Digital Media Terms of Agreement
In this Tree Digital Media Agreement, NETWORK PEOPLE, INC. is the parent company of TREE DIGITAL MEDIA. NETWORK PEOPLE, INC. will be referred to as “NETWORK PEOPLE” and the customer will be referred to as “COMPANY”. This Agreement may be executed by facsimile, digital signature, and/or in multiple counterparts. Once executed by both parties, this Agreement shall be effective as of the Signing Date.
NETWORK PEOPLE will commence service under the terms of this agreement only after it receives and accepts this Agreement signed by a COMPANY authorized representative.
- Agreement will commence on the date that both parties have signed agreement and will remain effective until the project is complete and COMPANY has paid in full. For monthly Digital Marketing or Consulting services, the agreement term will be Annual with auto-renewal unless otherwise specified. The Effective Start Date of delivery of services commences on the date both parties have signed. The Effective Start Date (day both parties sign) as listed on this Agreement shall remain in effect for the entire Term of the agreement. The agreement will automatically renew for additional periods of the same length as the initial Term unless one party provides the other written notice of terminating the Agreement not more than 90 days and not less than 30 days prior to end of the Contract Term specified in the Agreement.
0.1 Project Phase for Monthly Digital Marketing, if required for new Service Agreement, will be scheduled at time of signing. This phase will precede the Digital Media Agreement start date by two weeks. Once onboarding phase is complete, Digital Media support services will commence. If service state date does not fall on the 1st of the month, cost of service will be prorated for the month according to actual start date.
Service Fees and Billing.
COMPANY agrees to pay the recurring charges for Service, as well as the hourly service for time required beyond the services covered by the agreement. Service charges may not include applicable taxes, shipping charges (if any), or remediation charges, all of which shall be billed in addition to the Service Charges (or billed by third party providers) and shall be the responsibility of the COMPANY to pay in full. Once payment is made on any and all services, there are absolutely no refunds.
1.1. Initial Payment. NETWORK PEOPLE will charge COMPANY for project fees, and any hardware costs at time of signing. Upon COMPANY acceptance and full execution of this Agreement, the amount will be due in full.
1.2. Recurring Charges. NETWORK PEOPLE will bill COMPANY monthly in advance for Digital Media being provided under this Agreement. If service start date does not fall on the 1st of the month, cost of service will be prorated for the month according to actual start date.
1.3. Payment for Services. All Service Charges and other fees will be due in U.S. dollars on the 1st day of every month. If payment for the current month is not received by the 15th of that month, a fee equal to the greater of $35.00 or 5% of that month’s Digital Media Agreement will be assessed and services may be suspended until the late payment is received. Late payments will accrue interest at a rate of eighteen percent (18%). If payment is returned to NETWORK PEOPLE with insufficient funds, COMPANY is considered to not have paid and subject to a returned check charge of $50 and service may be suspended. COMPANY understands that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. COMPANY shall pay any such taxes unless a valid exemption certificate is furnished to NETWORK PEOPLE for the state of use.
1.4. Payment for Work Outside the Scope. COMPANY understands that any and all services or hardware or software requested by COMPANY that fall outside of the terms of this Agreement will be considered Work Outside the Scope of this Agreement. Any Work Outside the Scope of this Agreement will be billed separately and due upon receipt of services.
1.5. Rate. COMPANY understands the rate will increase by 5% per year but will remain “locked in” for the first 12 months after the start date of the signed agreement. (For example, on an agreement signed in October for a 1-year term, the rate will be “locked in” for that 1 year term and then increase at the end of that term on October 1st of the next year. If a multi-year term is selected on the agreement, COMPANY receives the “locked in” rate for 12 months and at the end of that term, the agreement will increase by 5% annually.)
2. Services and Tools.
2.1. Covered Services. NETWORK PEOPLE will provide service for items listed in the “Monthly Expense Summary” for the benefit of the COMPANY as part of this Agreement.
2.2. Additional Expenses.
2.2.1. Work Outside the Scope. NETWORK PEOPLE may invoice COMPANY for Work Outside the Scope of this Agreement for the rate stated under the COMPANY’S “Service Response and Rates” section. Out of scope work includes but is not excluded to troubleshooting, diagnosing, fixing, configuring of computers, mobile devices, or servers/printers/NOC equipment that is NOT itemized and paid for under the support agreement. In other words, if service and/or equipment is not covered under the Digital Media Agreement, it will not be supported under the agreement.
2.2.2. Travel Time. Travel between NETWORK PEOPLE’S site and the COMPANY site will be subject to an hourly rate as listed under “Service Response and Rates” for any travel .
2.2.3. Meals and Lodging. Daily meals and lodging may be billed to the COMPANY if services require travel of more than 50 miles from the NETWORK PEOPLE headquarters. Amount billed per day for meals and lodging will be charged at the following dollar amounts (standard hotel room near office if engineer needs to stay overnight, per diem of $50 for meals per engineer).
2.3. Service Hours and Rates. All Services will be handled as part of this Agreement under the “Service Response and Rates” section. All Work Outside the Scope of this Agreement will be billed under the provisions of the “Service Response and Rates.”
2.4. Response/Resolution Times and Service Levels. NETWORK PEOPLE response time will be handled in accordance with the provisions detailed under the section “Service Response and Rates.”
2.5. Support and Escalation. NETWORK PEOPLE will respond to COMPANY’S Tickets as quickly as possible but not to exceed response times noted in “Service Response and Rates.” Tickets can be opened using the following preference:
- a)By telephone using (727) 900-6161, option 1 for Dispatch Centerto create the ticket
- b)Via email to our Dispatch Center info@TreeDigitalMedia.com
- c)Each call will be assigned a Ticket number for tracking
2.6. Facility Access. NETWORK PEOPLE may need access to the COMPANY facility during normal business hours and may need access afterhours for emergency and afterhours work.
2.7. Chronically Failing Equipment. Experience has shown that equipment belonging to the COMPANY which initially passed the Minimum Standard Requirements for Service can reveal itself to become chronically failing. This means that the equipment repeatedly breaks down and consistently causes user and business interruption even though repairs are accomplished. Should this occur, while rare, COMPANY agrees to work constructively and positively with NETWORK PEOPLE to replace the equipment at additional cost to the COMPANY.
2.8. NETWORK PEOPLE Equipment. COMPANY agrees that any Equipment specified as NETWORK PEOPLE Equipment, will remain the sole property of NETWORK PEOPLE with security interest and COMPANY will not attempt to sale, resale, tamper, troubleshoot, repair, move, add, etc. to this Equipment without verbal or written permission of NETWORK PEOPLE. Should this contract terminate by either party, COMPANY agrees to return the Equipment to NETWORK PEOPLE within 30 days from the final cancellation date. COMPANY further acknowledges and gives permission to NETWORK PEOPLE to seize Equipment from location in event of contract termination after 30 day grace period, and agrees to compensate NETWORK PEOPLE for all expenses accrued during the seizure process. In the event of termination of this contract, COMPANY will be given the option of purchasing any NETWORK PEOPLE owned equipment at a fair market value to be determined at that time. COMPANY agrees to make all logical and earnest attempts to keep equipment safe, secure and protected while in their possession. Should COMPANY default on this agreement, permission is granted to enter their premises at any time and remove all of NETWORK PEOPLE’S hardware, and all efforts to recover such property will be deemed consensual and not a trespass.
2.9. Change Management Process. The following processes will be followed for any change of scope request: 1. Problem Identification, 2. Delivery of Change Request, 3. Logging of Change Request, 4. Approval and Acceptance, 5. Implementation.
Disclaimer of Third-Party Actions and Control.
NETWORK PEOPLE does not and cannot control the flow of data to or from the network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which COMPANY connections to the Internet (or portions thereof) may be impaired or disrupted. NETWORK PEOPLE cannot guarantee that such situations will not occur and, accordingly, NETWORK PEOPLE disclaims any and all liability resulting from or related to such events.
Limitations of Liability.
4.1. Personal Injury. NETWORK PEOPLE will not be liable for any harm or personal injury to COMPANY personnel or COMPANY resulting from any cause, other than NETWORK PEOPLE’S gross negligence or willful misconduct.
4.2. Damage to COMPANY Equipment. NETWORK PEOPLE is not liable for damage to, or loss of any COMPANY Equipment resulting from any cause, other than NETWORK PEOPLE’S gross negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged COMPANY Equipment, or the total amount paid by COMPANY to NETWORK PEOPLE.
4.3. Damage to COMPANY Business. In no event will NETWORK PEOPLE be liable for any incidental, punitive, indirect, or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Service or any other similar claims by COMPANY or related to COMPANY’S business, even if NETWORK PEOPLE is advised of the possibility of such damages. NETWORK PEOPLE will not be liable for any damages or expenses incurred by COMPANY as a result of any deficiency, error, or defect in NETWORK PEOPLE’S service whether due to equipment, hardware, software, consulting, advice or NETWORK PEOPLE’S failure to correct the same, except in the event of NETWORK PEOPLE’S willful actions and only to the extent that such damages are covered by NETWORK PEOPLE insurance which shall provide the COMPANY a current copy of its insurance declaration page.
4.4. Maximum Liability. Notwithstanding anything to the contrary in this Agreement, NETWORK PEOPLE’S maximum aggregate liability to COMPANY related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by COMPANY to NETWORK PEOPLE.
NO WARRANTY.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NETWORK PEOPLE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NETWORK PEOPLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Indemnification.
6.1. By COMPANY. In no event shall NETWORK PEOPLE be liable for any special, indirect, consequential, or punitive damages to COMPANY or any other party as a result of the performance or non-performance by Network People, Inc. of any services described herein, (Including, without limitation, loss of data, profits, or use of software) whether foreseeable or not, even if Network People, Inc. has been advised of the possibility of such damages. Network People, Inc.’s liability with respect to, arising from, or in connection with this agreement, whether in contract, in tort, or otherwise, is limited to amounts paid by The Company to Network People, Inc., excluding travel and per diem expenses, pursuant to the terms hereof.
6.2. By Network People. If NETWORK PEOPLE’S equipment is located at COMPANY’S office or data center, NETWORK PEOPLE will indemnify, defend and hold harmless COMPANY, its directors, officers, employees, affiliates and companies (collectively, the “Customer Covered Entities”) from and against any and all claims, actions or demands brought against any of the Customer Covered Entities alleging with respect to the COMPANY’S business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Guidelines.
6.4. Nonpayment & Cancellation Fee. NETWORK PEOPLE may suspend Service to COMPANY if any amount due hereunder is not paid in full within fifteen (15) days after COMPANY is sent an overdue notice. To reinstate Service, NETWORK PEOPLE will charge a service fee of $500.00. NETWORK PEOPLE may suspend service on this Agreement if any amount due hereunder is not paid in full within thirty (30) days after COMPANY is sent an overdue notice. COMPANY agrees to pay for full amount of the monthly service even if NETWORK PEOPLE has to suspend service for part of that month due to non-payment. If COMPANY fails to pay any overdue balance, NETWORK PEOPLE will at its discretion hold any equipment owned by COMPANY until fees are paid in full or at its discretion prevent access to services provided.
No poaching.
Both NETWORK PEOPLE and COMPANY agree to NOT poach employees from each other throughout the term of this agreement and any extensions. If an employee of NETWORK PEOPLE is hired directly by COMPANY as an employee or indirectly by COMPANY as a contractor under any payment arrangement, COMPANY agrees to pay NETWORK PEOPLE the equivalent of three (3) years current compensation package for that employee (including salary, bonuses, retirement, and benefits) within 15 days of the hiring of that employee to cover training and replacement costs. Conversely, if an employee of COMPANY is hired directly by NETWORK PEOPLE as an employee or indirectly by NETWORK PEOPLE as a contractor under any payment arrangement, NETWORK PEOPLE agrees to pay COMPANY the equivalent of three (3) years current compensation package for that employee (including salary, bonuses, retirement, and benefits) within 15 days of the hiring of that employee to cover training and replacement costs. Both companies, however, can make an exception to this clause if the terms of the hiring are agreed upon in writing BEFORE any conversation pertaining to this happens with the employee.
Cancellation/Termination.
8.1. Cancellation by COMPANY and Early Termination Fee. COMPANY must give NETWORK PEOPLE at least thirty (30) days written notice of any cancellation or termination of services. COMPANY must send an email or fax with Company letterhead to NETWORK PEOPLE; document must include the COMPANY name, description of services and effective cancellation date. In circumstance where COMPANY chooses to terminate the agreement early, COMPANY agrees to reimburse NETWORK PEOPLE for any and all discounts realized when signing the agreement and agrees to pay 90 days worth (3 months) of the monthly agreement rate (calculated based on the average rate paid for services to date on the agreement) as an Early Termination Fee.
8.2. Cancellation by NETWORK PEOPLE. NETWORK PEOPLE reserves the right to terminate COMPANY for any reason which may violate this agreement. NETWORK PEOPLE will provide the COMPANY with ninety (90) days advanced written notice of termination of contract for cause and will allow the COMPANY thirty (30) days to cure any breach. NETWORK PEOPLE also reserves the right to withhold any refunds to COMPANY, NETWORK PEOPLE must give COMPANY at least ninety (90) days advanced written notice of cancellation.
8.3. Bankruptcy. NETWORK PEOPLE may terminate this Agreement upon written notice to COMPANY if COMPANY becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors, if such petition or proceeding is not dismissed or resolved within 60 days of filing. The termination would be effective immediately.
8.4. For Other Cause. Except as otherwise stated, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ninety (90) days after receipt of written notice of the same.
8.5. Effect of Cancellation or Termination. Upon expiration or termination of this Agreement: (a) NETWORK PEOPLE will cease providing the Services; (b) all of COMPANY payment obligations under this Agreement, including but not limited to monthly Service Fees through the end of the Term will become due in full immediately; and (c) within ninety (90) days, NETWORK PEOPLE will remove all NETWORK PEOPLE technology and any other owned property from COMPANYS premises.
Survival.
The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
Service Disclaimer.
COMPANY grants NETWORK PEOPLE authorization to view any files within the regular routine of the repair or system improvement. COMPANY also authorizes NETWORK PEOPLE to reasonably delete, change, and/or rewrite any necessary information to complete the system repair or improvement that is consistent with the standards and practices in the industry.
Confidentiality.
NETWORK PEOPLE and its agents will not use or disclose COMPANY information, except as necessary to or consistent with providing the contracted services and will protect against unauthorized use.
Disputes.
In the event of any dispute between the parties, the parties agree to attempt to resolve the dispute in good-faith through a face-to-face meeting. In the event of any dispute which the parties cannot resolve after face-to-face good-faith discussions, the parties agree to participate in non-binding mediation within fourteen (14) days after demand for mediation by either party, prior to filing any litigation. The non-requesting party will choose the mediator. The costs of the mediation will be shared equally by the parties. If either party files any litigation prior to participating in mediation, then that party will pay all costs incurred, including legal fees, in having the matter dismissed or stayed pending mediation. Parties agree that the forum for any arbitration, mediation, or litigation shall be the Circuit Court of Pinellas County.
Award of Expenses.
In the event that either party must take any action to enforce any term of this Agreement, including payment, each party agrees to pay their own attorneys’ fees and all their own costs, including but not limited to expert witness fees, court and process costs.
General.
This Agreement and the rights, duties, obligations and liabilities of the parties under this Agreement and all amendments, modifications, authorizations or supplements to this Agreement shall be determined in accordance with the applicable provisions of the laws of the United States of America and of the State of Florida, as applicable to contracts made and to be performed entirely within that state, without reference to its doctrines or principles of conflicts of laws. Any action or proceeding arising out of or relating to this Agreement and the agreements, instruments, documents and other papers contemplated hereby shall be brought in the United States District Court for the District of Florida, or any state courts for the State of Florida situated in Pinellas County. The parties hereby consent to and agree to submit to the exclusive jurisdiction of such courts and waive and agree not to assert, in any dispute, to the fullest extent permitted by applicable law, any claim that (I) such party is not personally subject to the jurisdiction of such courts, (ii) such party and such party’s property is immune from any legal process issued by such courts, or (iii) any litigation commenced in such courts is brought in an inconvenient forum.
Acts of God.
NETWORK PEOPLE is not responsible for failure to render services due to circumstances beyond its control including, but not limited to, pandemics or acts of God.