These terms are related to any DIGITAL MARKETING ADVERTISING Agreement (this “Agreement”) by and between you (the “Advertiser” or “Customer”) and DigitalTreehouse, LLC (“DigitalTreehouse,” and Advertiser individually as “Party” and collectively as the “Parties”).
1. Digital Marketing Services: Advertiser has contracted with DigitalTreehouse to provide one or multiple services ("Services") related to the following services as laid out in the preceding proposal ("Proposal"): online advertising, website development, search engine optimization (“SEO”), search engine marketing (“SEM”), online listing and reputation management (“OLM/ORM”), online marketing consulting, custom web asset development or other related services (“Services”).
a. Set-up: DigitalTreehouse agrees to create, manage, develop and employ Digital Marketing Services as provided in the Agreement, which includes DigitalTreehouse utilization of various internet advertising networks, search engines, proprietary software, third-party software, third-party services and other online properties in return for the amount payable by Advertiser to DigitalTreehouse as described in the Proposal, Email or Invoice. As reasonably requested by DigitalTreehouse and within fifteen (15) days of such request, Advertiser shall furnish DigitalTreehouse with such information to allow DigitalTreehouse to perform the Services. DigitalTreehouse will not be liable in any way for services that cannot adequately be provided due to the non-provision of information requested from Advertiser. DigitalTreehouse will continue to provide Digital Marketing Services at such level as can be reasonably maintained in the absence of the requested information. In this instance, no refund of any amount will be due to Advertiser for any services which could not be provided due to a failure on the part of Advertiser to provide necessary information to DigitalTreehouse as described herein.
b. Intellectual Property: Media accounts, marketing pieces, and web properties created or provided by DigitalTreehouse for the benefit of Advertiser under this Agreement will remain the property of Advertiser except as noted in section "m. Reversion of Assets" below. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services provided, whether expressly, by implication, estoppel or otherwise. In addition, each party shall retain sole and exclusive ownership of, including but not limited to, all patents, copyrights, trademarks, and other intellectual property rights that either party owned before entering into this Agreement. In addition, nothing contained herein will transfer ownership of any Required Content to DigitalTreehouse.
c. Images and Video: DigitalTreehouse will utilize AI generated copy, AI generated images, stock copy and stock images unless Advertiser chooses to supply these items. If Advertiser chooses to supply its own copy and/or stock images, DigitalTreehouse will assume no liability to Advertiser or any third parties for Advertiser’s use of non-DigitalTreehouse supplied images of copy. Images should be supplied in a digital format and text should be supplied in a format that can be viewed and edited with a word processor, such as Microsoft Word, Google Docs or Notepad. Advertiser should not submit scanned PDF or handwritten documents. If Advertiser would like to submit scanned PDF or handwritten documents, an additional charge of $100/hour will be charged by DigitalTreehouse for typing/data entry services. Any videos Advertiser would like to include on Advertiser’s website must be uploaded to a video hosting service, such as YouTube or Vimeo, prior to sending to the DigitalTreehouse team. Advertiser should supply the corresponding video link for use on the website. Images will need to be sent via email or cloud sharing solution, such as Dropbox or Google Drive. If there are a large number of images, DigitalTreehouse requests Advertiser send them in a zip file or via a cloud-based file sharing program. DigitalTreehouse is unable to process hard copies of images. If Advertiser needs custom images or video production, DigitalTreehouse can provide video and photography production services at additional costs captured in a written amendment to this Agreement or subsequent separate written agreement.
d. Website Hosting and Management: Website revision requests must be sent via email to your account manager or point of contact. Clients are allocated up to one hour per month of website changes. Additional changes beyond the monthly allocation will require a $100/hour fee. Monthly website changes and support services include the following: revisions, additions and/or deletion of text, images, forms, fonts and colors on existing pages. This does not include revisions to the website layout and design. DigitalTreehouse holds the right in its sole discretion to determine what revisions will require an extra charge on top of the agreed upon monthly fee. If no revisions are requested during a month period, unused time will not roll over to the following month period. As long as Advertiser is a client of DigitalTreehouse's website services, DigitalTreehouse will host Advertiser’s website as part of Advertiser’s monthly fee. Upon termination of this Agreement, DigitalTreehouse will discontinue hosting and terminate all website services immediately. Every effort is made to keep our websites up and running smoothly and DigitalTreehouse will not take responsibility for, or be liable for, a website hosted by DigitalTreehouse being temporarily unavailable due to technical issues beyond our control. DigitalTreehouse is not able to guarantee that the functions contained in any website will always be error-free, and Advertiser agrees that DigitalTreehouse will not be liable to Advertiser, or any third party, for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the website and any other web pages, even if Advertiser has advised DigitalTreehouse of the possibilities of such damages.
e. Meetings: DigitalTreehouse allows for up to three hours of meetings during the sales and onboarding process at no cost to the Advertiser. During these meetings the Advertiser's business and digital marketing strategies will be discussed and digital marketing services will be scheduled. Upon completion of these meetings and launch of any digital marketing campaigns, any additional meetings to discuss ongoing or new services will be charged at an hourly rate of $100/hour.
f. Online Advertising: If applicable, DigitalTreehouse will serve as Advertiser’s agent when purchasing and executing a search engine marketing or other online advertising campaign by buying advertising space directly from Google, Microsoft, Facebook or other available platforms as determined by DigitalTreehouse. Payments made to DigitalTreehouse may include the payment for purchasing and executing these campaigns.
g. Advertiser Information: Advertiser acknowledges and agrees that if DigitalTreehouse identifies any Required Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with a publisher’s formatting guidelines (e.g. use of unsupported special characters), DigitalTreehouse may, in its sole discretion, in addition to its other available rights and remedies, modify the Required Content. Advertiser acknowledges that various Services involve the provision of Required Content to publishers for use and publication, and that such publishers may require the license grant described herein. Advertiser grants DigitalTreehouse and its affiliates and each applicable publisher worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights (or a subset of such rights) with respect to such Required Content, including, but not limited to, rights to publish and syndicate such Required Content.
h. Additional Services: From time to time Advertiser may request information or services beyond the contracted Services. Such services may be available from DigitalTreehouse on an hourly fee basis of $100/hour. If such additional services are requested by Advertiser, and are in line with the services normally provided by DigitalTreehouse, then such services and the related fees will be billed either upon completion of the Services requested or at the end of the calendar month.
i. Term: Unless otherwise stated on the face of the Agreement, all DigitalTreehouse services run month-to-month and can be cancelled at any time with a 30-day notice.
j. Discontinuation of Services: It is the Advertiser’s full responsibility to store the information provided by DigitalTreehouse as of the termination of the Agreement. Upon termination, Advertiser will not have access to advertisement networks used by DigitalTreehouse and Advertiser will be responsible for hosting any Online Advertising Services or Services (websites, mobile websites, etc.) beyond the contracted dates on their own accounts. Advertiser shall also be responsible for the set-up and maintenance of new accounts upon receipt of the information and DigitalTreehouse will not be liable in any way for any such information after the Agreement is terminated. If Advertiser requests additional work by DigitalTreehouse to terminate Services including but not limited to transfer of services to other accounts, summaries of accounting, summaries of work completed, file transfers or other services or items that may be requested, Advertiser agrees to pay DigitalTreehouse at an hourly rate of $100/hour to collect and transfer such information or files.
k. Payments: All advertising fees are due monthly in advance via ACH payment, credit card payment or mailed check. All invoices will arrive with a due date. Invoices must be paid by the due date via ACH payment, credit card payment or mailed check. Checks should be addressed to DigitalTreehouse, 725 Cools Springs Blvd, Suite 600, Franklin, TN 37067. There will be a 10% interest charge per month for each month that invoices are past 30 days due.
l. Advertising Services Agreement: Services may be requested through multiple ways including via a zoom meeting, in-person meeting, phone conversation, text message, email, written letter or signed proposal. Advertiser agrees that Services can be requested in these different ways as listed and Services do not require a physical signed contract between the two parties to agree to Services. Payments of invoices related to Services provided by DigitalTreehouse to Advertiser act as Advertiser's confirmation that Services were requested and also confirmation that Advertiser agrees to Terms and Conditions presented on the invoices as well as the Terms and Conditions stated on this web page.
m. Reversion of Assets: In the event the Customer does NOT pay for services rendered within 60 days of being due or monthly reoccurring service invoices are NOT paid within 60 days of being due, all assets created by DigitalTreehouse (examples include websites, logos, advertisements) and/or purchased for Customer by DigitalTreehouse (examples include domain names, stock images, stock videos) will revert to being owned by DigitalTreehouse. DigitalTreehouse will immediately remove all assets from existence and not be liable to damages experienced by Customer for losing ownership and publication of its assets.
2. Video and Photography Production: To the extent Customer has contracted with DigitalTreehouse to provide services related to video production or photography the following terms and conditions shall apply:
a. Scheduling: DigitalTreehouse, in partnership with the third-party vendor of its choice, will use commercially reasonable efforts to schedule video shoot dates with Customer within fifteen (15) business days of receipt confirmation of a requested Services. Video or photography shoot dates must be scheduled within three (three) months of Agreement date or Customer forfeits the agreed upon video production or photography services and no refund or discount on this or other services will be made available.
3. Confidentiality: Except as otherwise provided herein, each party shall treat any confidential, secret or proprietary information that has been disclosed by such party (the “Disclosing Party”) to the other party (a “Receiving Party”), or that has been learned by the Receiving Party as a result of this Agreement, and which is not generally known to the public (collectively, the “Confidential Information”), as confidential and exercise at least the same degree of care to safeguard the confidentiality of the Confidential Information as the Receiving Party would exercise to safeguard the Receiving Party’s own Confidential Information but not less than a reasonable degree of care. The Receiving Party shall use the Confidential Information only as provided in this Agreement and shall not disclose, transfer, publish or otherwise make the Confidential Information available by any means to any individual, firm or entity other than employees of the Receiving Party who have a need to know and have been directed to treat the Confidential Information as confidential in accordance with this Agreement or except as otherwise provided herein. The Receiving Party shall immediately notify the Disclosing Party if any Confidential Information has been lost, stolen or inadvertently disclosed. The restrictions contained in this Agreement (a) will not apply to any information which (i) was known to a Receiving Party prior to the disclosure thereof, (ii) was in the public domain prior to the disclosure thereof; (iii) comes into the public domain through no fault of the Receiving Party; or (iv) is disclosed without restriction by a third party who has a legal right to make such disclosure. In the event either party breaches any of its obligations under this section, the non-breaching party, in addition to any other rights or remedies available, will be entitled to seek injunctive relief against the breaching party without the necessity of posting a bond or other security.
4. Limitation on Liability: In no event will DigitalTreehouse's liability in connection with the Services or this Agreement, whether caused by failure to deliver, nonperformance, defects, or otherwise, exceed the aggregate amounts paid by Advertiser to DigitalTreehouse hereunder during the period immediately preceding the event giving rise to such liability. IN NO EVENT SHALL DIGITALTREEHOUS BE LIABLE IN ANY WAY TO ADVERTISER FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT. The limitations contained in this Agreement apply to all causes of action in the aggregate, whether based in contract, tort (including negligence) or any other legal theory (including strict liability), other than as a result of fraud or intentional misrepresentations or omissions by DigitalTreehouse.
5. Governing Law; Jurisdiction: This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Tennessee without regard to its conflicts of law rules.
6. Waivers: Any term or condition of this Agreement may be waived at any time by the party, which is entitled to the benefit thereof, but only if such waiver is evidenced in writing signed by such party that makes specific reference to this Agreement. No failure on the part of any party hereto to exercise, and no delay in exercising, any right, power or remedy created hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver by any party hereto of any breach of or default in any term or condition of this Agreement shall constitute a waiver of or assent to any succeeding breach of or default in the same or any other term or condition hereof.
7. Entire Agreement: This Agreement, in conjunction with the terms and conditions stated in the written Proposal, constitutes the sole and entire agreement between the parties with respect to the subject matter hereof and thereof, and supersedes all previous discussions, representations, agreements, and commitments with respect to the subject matter hereof.
8. Assignment: Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement to a parent company, subsidiary or affiliate, or in connection with the sale of substantially all of the assets of such party, upon ten (10) days prior written notice to the other party.
9. Severability: All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary to render this Agreement legal, valid and enforceable. If any term of this Agreement, or part thereof, not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable under applicable law, it is the intention of the parties that the remaining terms hereof, or part thereof, shall constitute their agreement with respect to the subject matter hereof, and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision, which will implement the commercial purpose of the illegal, invalid or unenforceable provision.
10. Force Majeure: Neither Party will be deemed to be in default under this agreement because of the failure to perform any obligation hereunder if such failure is caused by fire, embargo, strike, war, acts of God, or other cause beyond such Party’s reasonable control (whether or not similar to the foregoing).
11. Indemnification: To the extent that a third party makes a claim against DigitalTreehouse, the Advertiser agrees to indemnify and hold harmless DigitalTreehouse and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, suits, damages, fines, penalties, judgments, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) Advertiser’s content or use of the Services; (ii) any actual or alleged violation or breach of any term of this Agreement; or (iii) violation of an applicable state or federal law.
