Fees for Services. Client agrees to pay PTE according to the manner of compensation described in the SOW. In connection with PTE’s representation, Client will incur certain expenses. These expenses may include travel costs, delivery charges, special postage (express mail, certified mail and the like), courier services, copying, stock photo purchases, and word processing computer charges. In addition to PTE’s fees for services, Client agrees to pay for all expenditures PTE advances as per the SOW. While costs will typically be included in your monthly invoices, PTE reserves the right to pass on to the Client for direct payment invoices from third-party service providers. PTE will provide Client with a detailed invoice monthly. All invoices for services rendered and costs incurred or advanced will be payable by Client upon receipt. If the invoice remains unpaid for thirty (30) days from the date of the invoice, then interest shall accrue and be payable on any unpaid amount at the annual rate of five percent (5%) above the prime rate published by The Wall Street Journal (New York edition) as of the date on which PTE should have received such payment, until payment, in full, is received by PTE . Client agrees to carefully review all invoices sent by PTE for services rendered and costs advanced or incurred by PTE and to promptly notify PTE in writing of any claimed errors or discrepancies in billing within ten (10) days from the date of the invoice. In the event Client fails to do so, it will be presumed that Client agrees with the correctness, accuracy, and fairness of the invoice. Further, if an invoice remains unpaid for thirty (30) days, PTE reserves the right, in PTE’s sole and absolute discretion to suspend all work until such time as Client’s account becomes current. PTE reserves the right from time to time to modify and adjust its standard hourly billing and flat fee monthly rates. Generally, this is done on a fiscal year basis for each individual client of PTE. Generally, fee increases are in the amount of three percent (3%) per each fiscal year that Client has engaged PTE. Client hereby recognizes and assents to said cost increases for each fiscal year in the amount of 3% which shall be expected to occur, resulting in additional fees to PTE compared to prior fiscal year(s).
Media Placement Commission Fee. “Media Placement” means advertising, sponsorship or promotional Media purchased by PTE, either directly or indirectly from third parties and vendors including media buyers in connection with the provision of Services. Payments for Media Placement may take any form, including cash, credits, or the transfer of funds by digital means. In addition to fees for services under the SOW, PTE shall bill Client at a ten percent (10%) commission rate on any and all Social Media Placement and Google Pay-Per-Click, and fifteen percent (15%) rate on any and all other Media Placement, regardless of format (whether digital or not) purchased by PTE on behalf of Client. “Social Media Placement” for purposes of this paragraph 3 is defined as any Media Placement on websites or applications for social networking through which users create online communities to share information, ideas, personal messages, and other content. PTE is hereby authorized to purchase and conduct Media Placement on Client’s behalf as Client’s agent specifically and only for Client approved Media Placement. PTE shall review all Media Placement for appearance, accuracy, timeliness, position & size when Media Placement is ordered, but makes no warranty, implied or otherwise, that Media Placement issued by third parties, vendors, or media buyers will be accurate as to appearance, accuracy, timeliness, position and size and assumes no responsibility, liability or duty to rectify or verify beyond the purchase of Media Placement. To the extent any payment for Media Placement by PTE on behalf of Client is inaccurate, as to appearance, timeliness, position and size or for any other reason that may results in the dissatisfaction of Client, then Client shall be solely responsible for obtaining a refund or other remedial or measure of rectification; in any event, such remediation or measure of rectification shall in no way act to reduce, limit or refund PTE’s Media Placement Commission Fee. In the event no commission is granted or allowed on any such Media Placement purchases to PTE, Client agrees that PTE may invoice Client a gross amount that shall yield PTE the applicable above referenced percentages in this paragraph 3 as the Media Placement Commission. For any and all Media Placement purchased by PTE, Client shall be held solely liable for payments in accordance with this contract. PTE may require, in its sole discretion, payment from Client to PTE for Media Placement in advance of PTE’s Media Placement Purchases. For digital or other Media Placement that is dependent on campaign performance (such as, but not limited to “Pay-Per Click” Media Placement), PTE and Client shall agree upon a budget as detailed on the SOW. As a hypothetical example, in the event the SOW budgets One Thousand Five Hundred Dollars ($1,500) for “Pay-Per-Click” Media Placement, and the campaign results in One Thousand Four Hundred Dollars ($1,400) “Pay-Per-Click” in Media Placement, then PTE’s Media Placement Commission Fee shall be One Hundred and Forty Dollars ($140) or ten percent (10%) of the actual Media Placement.
Term/Termination. Unless otherwise indicated on the SOW, the term of this agreement shall commence on the date of both parties’ signatures and continue in full force until terminated. Rejection of the completed SOW or termination during its execution will result in the billing for labor and/or expenses to date. If, prior to completion of the SOW, the Client observes any nonconformance with the attached SOW, Client must promptly notify PTE, allowing reasonable time for necessary corrections. If PTE breaches any provision of this agreement, Client may terminate this agreement by providing PTE with thirty (30) days prior written notice of the breach and providing PTE with thirty (30) days to cure the breach. If PTE does not cure the breach, this agreement will immediately terminate upon Client’s payment of any outstanding debt and/ or fees due to PTE. Otherwise, Client may terminate this agreement for any reason by providing PTE with sixty (60) days prior written notice of the Client’s termination of this agreement and payment of any outstanding debt and/or fees due to PTE. PTE may terminate this agreement by providing Client with five (5) days prior written notice of termination. Upon termination, PTE agrees to provide reasonable cooperation in arranging for the transfer of any Work Product (as defined below) following written release from the obligations therein, and Client agrees to assume all of PTE’s liability under third party contracts made on Client’s behalf.
Deposit. Client agrees to provide PTE with the advance deposit for services and expenses as provided on the SOW. Invoices will be deducted from the advance deposit for services and/or expenses. In the event this agreement is terminated, any advance deposit not utilized by PTE under the terms of this Agreement will be refunded to Client after sixty (60) days.
Ownership and Usage. Until such time as PTE receives payment in full for all services rendered to the Client, PTE shall retain all communications, projects and materials developed at Client’s direction including, but not limited to, the following: advertisements and/or designs, brochures, news releases, newsletters, layouts, and drafts, web development work, concepts, mock ups, wireframes, content layouts, marketing and/or social media plans, strategies, designs and content plans (collectively “Work Product”). PTE agrees that upon receipt of payment in full, PTE shall release all Work Product developed for Client. Except as otherwise provided herein, Client owns all rights, title, and interest in and to the work produced by PTE under the SOW, which are the subject of this Agreement. PTE retains the right to use the work for promotional purposes. Client grants PTE an exclusive, worldwide, sub-licensable, transferable, royalty free license to all media clips produced. Where applicable, client will be given any necessary credit for usage of the project. The terms of this paragraph expressly survive termination of this agreement.
Electronic Mail Marketing (“EMM”). PTE has a no tolerance spam policy. Client warrants to PTE that Client has obtained permission from the owner of each and every electronic mail (“e-mail”) address that Client provides to PTE for any EMM on behalf of Client. Further, Client agrees to provide PTE with proof of permission upon demand, and may suspend all services unto Client until proof thereof has been provided to the reasonable satisfaction of PTE.
Artwork/Approvals. Client is SOLELY responsible for providing PTE with Raw Material, including but not limited to, images, photographs, copy and artwork, (“Raw Material”) for use in the SOW. Client is fully legally responsible for and warrants that all Raw Material are free from any patent, trademark, copyright, or other intellectual property infringement and accepts all legal and other responsibilities for the use, delivery and modification by PTE of such Raw Material. PTE may but is not required to request that Client provide proof of purchase or other satisfactory proof of intellectual property ownership of Raw Material. PTE shall in no event be held liable for any errors or omissions concerning intellectual property rights in Raw Material and Work Product. By law, If Client’s provided Raw Material includes unauthorized content from third parties, intellectual property ownership for those materials remains with the applicable third party at all points in time, whether Work Product has been approved by Client and sent to vendor for production or otherwise released for publication. Any and all intellectual property rights that are granted from PTE to the Client do not cover third party materials, as Client is solely responsible for ensuring that it has the appropriate ownership and/or licenses to use and or provide said Raw Material.
Legal Advice. Client acknowledges that PTE cannot provide legal advice or opinions on any matters, including but not limited to, intellectual property rights, website disclaimers, website terms of use or privacy policy, terms and conditions of any applications, and compliance with any Federal, State or local governmental rules and regulations, including, but not limited to, any website disability access and compliance, WCAG standards, Sections 504 and 508 of the Rehabilitation Act, and the Americans with Disabilities Act. Client is advised to obtain independent legal opinions from a licensed attorney regarding all legal compliance and all intellectual property aspects of the SOW and/or Work Product.
Confidentiality. In the course of performing its services under this agreement, PTE and Client may become familiar with information that is confidential to each respective Party (“Confidential Information” is defined herein as any non-public information, proprietary information, or information that is afforded protection from disclosure under federal or state laws, including, but not limited to customer lists or trade secrets and processes). PTE and Client agree to keep all t Confidential Information confidential and will only discuss or disclose said Confidential Information to third parties as required by law. Notwithstanding the foregoing, each party is free to acknowledge the existence of the relationship between the Parties, and each Party may disclose the Confidential Information to such of its authorized officers or employees as may be reasonably necessary or desirable provided that before any such disclosures each Party shall make such persons aware of its obligations of confidentiality under this Agreement and shall at all times use its best efforts to procure compliance by such persons therewith. This provision expressly survives termination of this Agreement.
Artificial Intelligence (AI) Disclaimer. Some or all outputs may be generated by/with artificial intelligence.
Indemnity and Hold Harmless. Client shall indemnify, defend and hold PTE harmless against any and all losses, claims, damages, liabilities, and expenses (but not to the extent of successful claims against one another), including any litigation arising from this agreement or involving this agreement’s subject matter in connection with the indemnifying party’s failure of performance of its duties under this agreement or a misrepresentation in this agreement, and Client’s use of the Work Product without regard to whether or not a suit is filed in court. The indemnity, defense and hold harmless rights extend to the parties’ shareholders, officers, directors, partners, members, managers, agents and representatives. In the event Client engages PTE to provide Social Media Marketing (“SMM”), Client expressly agrees to indemnify and hold PTE harmless from any action that may constitute a violation of the terms of use of any SMM platform, including, but not limited to, Facebook, Instagram, Linkedin, and Twitter. PTE agrees to routinely review any updated terms of use of applicable SMM platforms, however, PTE cannot and expressly does not warranty strict compliance on behalf of Client. Client specifically warrants that client is familiar with terms of use on all applicable SMM platforms to be utilized and shall update PTE with all relevant information concerning the same that may impact Client’s use of any SMM platform. The terms of this paragraph expressly survive termination of this agreement. PTE shall have no obligation to defend or otherwise indemnify Client for any claim arising out of or due to Work Product, Third Party Materials, modifications of or content added to the Work Product by Client or third parties, improper or illegal use of Work Product, use of Work Product not authorized under this Agreement, or the failure to update or maintain Work Product.
No Patent, Trademark or Copyright (“Intellectual Property) Warranty Made. Client expressly acknowledges that PTE is not in the business of creating legal rights in intellectual property to be filed or otherwise registered with the United States Patent & Trademark Office (“USPTO”) or other relevant legal authority. Client further expressly acknowledges that there is no expectation or implication made by PTE that any of the services to be provided herein by PTE create any form of intellectual property that may be filed or registered with the USPTO; in the event that in the course of work conducted by PTE results in the creation of intellectual property for Client, PTE expressly disclaims any assurance that said intellectual property is legal, valid, or does not infringe on the rights of third parties. In any event, Client shall indemnify and defend PTE against any claims that the Work Product developed pursuant to the SOW infringes upon the intellectual property rights of any third party. In the event that a third party claims that it’s intellectual property is being infringed upon, PTE shall, in its reasonable judgment and at its option, in accordance with the agreement of Client and at Client’s expense: (i) obtain on behalf of the Client the right to continue using the Work Product; (ii) replace or modify the Work Product so that it becomes non-infringing while giving equivalent performance; or (iii) if PTE, on behalf of Client cannot obtain the remedies in (i) or (ii), as its sole obligation, may terminate this Agreement pursuant to the notice provisions pursuant to this Agreement.
Attorney’s Fees. In the event any disputes arise out of this agreement, whether or not either party files suit, the prevailing party(s) shall be entitled to recover reasonable legal fees, expenses and court costs through appeal and final judgment on all issues in addition to any other relief to which a party) may be entitled.
Warranty Disclaimer. All express or implied conditions, representations and warranties, including implied warranty of merchantability, fitness for a particular purpose or non-infringement, are disclaimed, except to the extent such disclaimers are invalid. PTE has not given and Client has not relied on or bargained for any such warranty.
Warranties and Representations. Each party warrants and represents that (a) each party has full right, power and authority to enter into this agreement and that an authorized representative has executed this agreement. Client warrants that approval and control over content of all marketing material developed by PTE for Client, including but not limited to, those services described on the SOW, is the responsibility of Client. PTE has no financial interest in the success of any marketing program or advertising package. Further, Client exercises exclusive control over distribution of any material produced by PTE. PTE warrants that the services performed by PTE will be performed in a professional and workmanlike manner in accordance with industry standards. To the extent PTE provides advisory services, no specific results are assured or guaranteed.
Headings; Universal Person. The parties include headings in this agreement for convenience only, not to give any greater weight or significance to, or otherwise limit or affect, the meaning of any word, phrase, sentence, paragraph or other clause in this agreement. Unless otherwise expressed in this agreement, bolded, italicized or underlined letters, numerals, or characters have no greater significance than plain text letters, numerals, or characters.
Deadlines. Every deadline, requirement, occurrence, or act required on a certain date not falling on a day when the Federal Reserve Bank serving the Federal Reserve District that includes the State of Florida is actually open for operations, extends to the first day following without regard to whether or not the Federal Reserve Bank scheduled the closure.
Further Assurances. In addition to those instruments expressly required by this agreement, Client will execute and deliver to PTE other transfers, assignments, instruments and documents and do all matters and things that may be convenient or necessary to achieve this agreement’s intent more effectively or completely.
Waivers; Time is of the Essence. The failure or delay of any party at any time to require performance by another party of any right or duty of this agreement, even if an affirmative demand is required, will not affect the right of a party to require performance of that provision or to exercise any right, power or remedy under this agreement. Any waiver by any party of any breach of any duty or provision of this agreement is not a waiver of any continuing or succeeding breach of the duty or provision, a waiver of the duty or provision itself, or a waiver of any right, power or remedy under this agreement. No notice to or demand on any party in any circumstance will, of itself, entitle the party to any other or further notice or demand in similar or other circumstances. Nonetheless, time is of the essence with respect to every duty expressed in this agreement; all duties and the passing of all deadlines set forth in this agreement are material terms of this agreement.
Interpretation; Savings Clause; Severability. Should any court or governmental agency or authority of any jurisdiction determine that any word, phrase, sentence, paragraph, section or other portion or provision of this agreement is impossible, void, invalid, unenforceable, or otherwise prohibited for any reason, the offending word, phrase, sentence, paragraph, section or other portion or provision of this agreement will be deemed omitted, stricken or modified to the extent necessary so that this agreement can be construed to give effect to all of its clauses so that the parties receive the full consideration bargained for under this agreement, less an appropriate set-off for the absence of the impossible, void, invalid, unenforceable, or otherwise prohibited performance not rendered or to be rendered.
No Joint Venture. Nothing contained in this agreement creates an employment relationship, partnership, joint venture or other association between any of the parties or causes any party to be responsible in any way for the debts or obligations of any other party, other than as expressly set forth in this agreement. Furthermore, no party has the authority to bind, represent or otherwise participate with the other, except as otherwise expressly provided in this agreement.
Incorporation by Reference; Cumulative Attachments. Every reference to an exhibit, schedule, addendum or other attachment to this agreement includes any cumulative exhibits, schedules, addenda or other attachments thereto, unless expressly excluded, and this agreement incorporates them as if they were set out in full in the main body of this agreement.
Persons Bound; Assignment; Third Parties. The rights and duties in this agreement inure to and bind the respective parties and their legal representatives, heirs, executors, administrators, receivers, guardians, successors, and permitted assigns. PTE may not assign this agreement without Client’s written consent. Client may not assign this agreement, or any of Client’s rights or duties under this agreement without the prior written consent of PTE. Except as otherwise expressed, nothing in this agreement: (a) confers any rights or remedies on any persons or entities other than the express parties to this agreement; or (b) relieves or discharges any third persons from any obligations to any party to this agreement, nor does any provision give any third persons any right of subrogation or action over or against any party to this agreement.
Choice of Laws; Venue; Waiver of Jury Trial. In the event any dispute arises out of this agreement, the parties agree that the internal laws of the State of Florida will govern the dispute and that venue for any dispute, including any dispute where the citizenship of the parties is diverse, will be solely and exclusively in the courts for the County of Lee, State of Florida. If, and only if, the state court for the County of Lee, State of Florida does not have jurisdiction, then venue will lie in the U.S. District Court having jurisdiction over the County of Lee, State of Florida. The parties waive any defenses or objections based on lack of personal jurisdiction over the parties. There are economic benefits, including convenience, obtained from controlling the forum of any dispute, and those economic benefits are part of the consideration for this agreement. The parties expressly waive the right to trial by jury, if any.
Notices. The parties will deliver all notices, requests, consents, directions, terminations, and other communications required or permitted under this agreement in writing (as elected by the person giving notice) by: (a)hand delivery; (b)a courier service generally recognized as providing expedited delivery services throughout the country where delivered; (c)electronically (by telefax or e-mail); or (d) by regular U.S. Mail (airmail if international). The Client shall prepay all delivery costs, if applicable, and fully and accurately address the deliveries as stated in the SOW, (or to any other physical or electronic address as a party may designate by notice complying with the terms of this section). Each notice will be deemed delivered on the date received by the receiving party if hand delivered; on the date of successful transmission if electronic transmitted; or on the date postmarked by the U.S. Postal Service if mailed.
Final Agreement; Amendments; Counterparts; Signatures. This instrument embodies the whole agreement of the parties to this agreement and there are no promises, duties, terms, conditions or obligations between the parties other than those contained or expressly referenced in this agreement. The parties may execute this agreement in counterparts, each deemed an original, but all taken together will constitute the same instrument. Modifications must be in writing and executed by the party charged. Facsimile signatures have the same effect as originals. Electronic signatures in accordance with Chapter 668, Florida Statutes or 15 USC 7001 bind the parties electronically acknowledging the document.
Parity. This Agreement shall be construed on parity between the Parties, without regard to which party may have drafted the same, and each party recognizes that their own attorney(s) and tax advisors have reviewed and approved of this agreement and attached exhibits, and, if any party has not retained the services of a licensed attorney, or licensed tax advisors then, said party affirms that they have been provided adequate opportunity to do so and have conscientiously chosen not to do so.
LIMITATION OF LIABILITY:
CLIENT AGREES THAT PTE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF PTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE PROVIDED; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED, OBTAINED, MESSAGES RECEIVED, TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES PROVIDED BY PTE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (v) ANY OTHER MATTER RELATING TO THE SERVICE, INCLUDING ANY CLAIMS OF THIRD PARTIES WITH REGARD TO INTELLECTUAL PROPERTY INFRINGEMENT, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF PTE HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
PTE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND PTE’S REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATIONS SYSTEMS BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
IN NO EVENT WILL PTE’S MAXIMUM AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS EXCEED THE AMOUNT OF FEES PAID BY CLIENT FOR THE SERVICES FROM WHICH THE CLAIM AROSE, WHETHER IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, UNLESS PTE’S ACT OR FAILURE TO ACT INVOLVES WILLFUL AND WANTON MISCONDUCT, IS GROSSLY NEGLIGENT OR IS A RESULT OF FRAUD.
CLIENT AGREES THAT THE TERMS OF THIS PARAGRAPH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT, AND THAT CLIENT HAS BEEN FULLY ADVISED BY INDEPENDENT COUNSEL OF THEIR OWN CHOICE BEFORE SIGNING THIS AGREEMENT; IF CLIENT HAS NOT DONE SO, THEN, THEY HAVE ACTIVELY CHOSEN NOT TO OBTAIN INDEPENDENT LEGAL COUNSEL OF THEIR OWN CHOOSING.
CLIENT HEREBY INDEMNIFIES, DEFEND AND HOLDS PTE HARMLESS FROM ANY AND ALL COST, EXPENSE, LIABILITY OR OBLIGATION THAT MAY ARISE, OR BE IMPOSED ON THE CLIENT OR ANY THIRD PARTY UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990, AS NOW IN EFFECT OR HEREAFTER AMENDED, AND ALL RULES AND REGULATIONS ISSUED UNDER THAT LAW, INCLUDING ANY VIOLATIONS OF COMPLIANCE WITH REGARD TO WEBSITE DISABILITY ACCESS, WCAG STANDARDS, SECTIONS 504 AND 508 OF THE REHABILITATION ACT. WITHOUT LIMITATION OF THE FOREGOING, CLIENT SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY OF THE PRECEDING LEGAL COMPLIANCE REQUIREMENT THAT MAY BE APPLICABLE, AND ALL COST AND EXPENSES RELATED THERETO. THIS INDEMNIFICATION SHALL INCLUDE THE DEFENSE OF ANY ACTION OR PROCEEDING (INCLUDING THE PAYMENT OF ATTORNEY’S FEES AND COURT COSTS) BROUGHT AGAINST CLIENT BY THE U.S. DEPARTMENT OF JUSTICE, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, OR ANY INDIVIDUAL OR CLASS OF INDIVIDUALS, ALLEGING VIOLATION OR NON-COMPLIANCE, AND PAYMENT OF ANY LIABILITY ARISING OUT OF SUCH ACTIONS OR PROCEEDINGS.