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TERMS AND CONDITIONS

 

Welcome to B.I.G. Marketing Services, (“B.I.G Services”).  By clicking the "Submit" button located below, you ("You" or “Client”) agree to be bound by the terms and conditions contained in this agreement (the "Agreement") and the terms and conditions of B.I.G’s privacy notice, which is published and are incorporated herein by reference.  This Agreement is made as of the date accepted (the “Effective Date”) by Business Ideas Group, LLC d/b/a/ B.I.G, a New Jersey limited liability company (“BIG” or “Contractor”).

1.         Independent Contractor Relationship

                              (a)        During the term of this Agreement, Contractor will provide Marketing Services to the Client as described in work order, (“Services”), subject to the terms, limitations and specifications set forth in this Agreement.

                              (b)       In the event that the parties wish to modify the scope of Contractor’s Services, they shall do so by written agreement signed by authorized representatives of both Parties (“Change Order”), in the absence of which no such modification shall be valid.

                              (c)        Contractor shall give the Client the full benefit of Contractor's knowledge, expertise, judgment and experience; provided, however, that Contractor shall not disclose to the Client or use for the Client, any confidential information of a third party with respect to which Contractor has previously undertaken an obligation of confidence for the benefit of any party other than the Client.

2.         Fees. 

(a)            Fees are based on confirmed work order.

 

(b)           Upon acceptance of this Agreement by B.I.G., Client shall pay a deposit totaling fifty percent (50%) of the Fees (“Deposit”).  Upon receipt of the Deposit, Contractor shall commence Services.  The Deposit is not refundable.  These liquidated damages are not intended as a penalty and are reasonable calculated based on the actual costs Contractor.

 

(c)            Upon forty-five (45) days of deposit, the remaining Fee shall be debited from Client’s credit card. Thereafter, the Final Content shall be supplied to Client.

 

(d)           Delayed Payment.  Upon acceptance of this Agreement, all invoices must be paid within thirty (30) days of the date of the invoice.  Should Client fail to pay any invoice within thirty (30) days, Contractor shall assess a five present (5%) fee (“Delayed Payment Fee”).  The Delayed Payment Fee will be added upon each recurring 30 day period until full amount has been paid in full.   

 

(e)            All website service expenses are the responsibility of the Client.

 

3.         Term and Termination. 

                              (a)        Contractor shall provide services to the Client for a period commencing on the Effective Date and terminating upon the fulfillment of this Agreement.

                        (b)       Notwithstanding the above, the Client may terminate this Agreement for convenience at any time upon thirty (30) calendar days written notice to Contractor. In the event of such termination by the Client, Contractor shall retain the Deposit and the remaining Fee shall be paid for any portion of the Services that have been performed, and accepted by the Client prior to the termination.

4.         Independent Contractor. Contractor’s relationship with the Client will be that of an independent contractor and not that of an employee and nothing herein shall be deemed to cause this Agreement to create an agency, engagement, partnership, joint venture or other relationship between the parties. 

5.         Method of Provision of Services.  Except as set forth herein, Contractor shall be solely responsible for determining the method, details and means of performing the Services.  Contractor may, at Contractor’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Contractor deems necessary to perform the Services (collectively, the “Subcontractors”). The Subcontractors are not and shall not be employees of the Client, and Contractor shall oversee the professional performance of the Services provided by the Subcontractors and shall require that all Services meet industry standards.

6.         Supervision of Contractor’s Services.  All of the services to be performed by Contractor, including but not limited to the Services, will be as defined in the Work Order agreed between Contractor and the Client’s Manager or Authorized Representative. Contractor reserves the right to demand a Change Order in the event Client’s Manager or Authorized Representative demands services that are outside the Work Order and/or Specifications.

7.         Indemnification. Client hereby agrees to indemnify, save, hold harmless and defend at its sole expense, Contractor, its employees, subcontractors, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client's use of all materials, services, trademarks, marketing materials, or software provided hereunder, including, but not limited to, claims based on licensing violations, copyright infringement, trademark infringement, negligent acts or omissions, intentional wrongful misconduct of the Client or its employees or subcontractors, unauthorized or unlicensed use of any materials, placement or operation of software in an area that does not comply with the manufacturer’s published space or environmental requirements, improper storage, use of the products or materials. In addition, Client agrees to pay any and all attorney’s fees costs, and any judgment associated with such claim that Contractor may incur.

 

8.         Non-Solicit. Client acknowledges that Contractor is involved in a highly strategic and competitive business. Client further acknowledges that Client would gain substantial benefit and that Contractor would be deprived of such benefit, if Client were to directly hire any personnel employed by or subcontracted with Contractor. Except as otherwise provided by law, Client shall not, without the prior written consent of Contractor solicit the employment of Contractor’s personnel or subcontractors during the term of this Agreement and for a period of one (1) year following expiration of this Agreement. If Client violates this provision and hires an employee or subcontractor of Contractor, then Client agrees it will pay to Contractor an amount equal to the employee’s total annual compensation or the amount equal to the subcontractor’s normal rate for the Client’s project, as liquidated damages and Contractor shall have the option in its sole discretion to terminate this Agreement without further notice or liability to Client.  These liquidated damages are not intended as a penalty and are reasonable calculated based on the actual costs Contractor would incur to recruit, hire, and train suitable replacement personnel. 

 

9.         Third-Party Materials. Contractor shall make use of any third-party materials or open-source code or intellectual property in the performance of the Services.  Contractor will provide the Client with a valid, enforceable license of such code or intellectual property in favor of Contractor and the Client.

10.       Confidentiality.  Contractor shall not be obligated to maintain any confidential information owned by Client unless all tangible materials including, without limitation, all writings, electronic files and data, objects, graphics, designs, programs, recorded information, drawings, models, apparatus, sketches, lists, and tangible documents of any kind that contain a notification that the materials are to be maintained as confidential (“Confidential Information”).  Such Confidential Information must be the sole and exclusive property of Client.  It is Client’s sole obligation to identify in writing and label all Confidential Information prior to disclosing to Contractor.  Confidential Information shall not include information, technical data or know-how which (i) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any improper inaction or action of Contractor, (ii) is expressly approved by Client, in writing, for release (iii) comes into the possession of Contractor from a third party that was not, to the best of Contractor’s knowledge, subject to any confidentiality restriction or (iv) is independently developed by the Contractor without use of Client’s materials.

 

11.       Data and Materials Storage. Contractor shall have no obligation to store or maintain any Client data or materials beyond fifteen (15) calendar days following the termination of this Agreement. Contractor shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by client or an third party that arise from, or are related to, Contractor’s deletion or loss of Client data beyond the time framed described in this section.

 

12.       Intellectual Property. Upon full payment of Fees, Client shall have complete, unrestricted and exclusive right and ownership to all materials created and used pursuant to this Agreement including but not limited to all trademarks, copyrights, applications, websites, source code, designs, materials, manuscripts, proposals, outlines, layouts, exhibits, logic diagrams, flow charts, process diagrams and know how, drawings, documents, reports, conclusions, marketing tools, processes, procedural diagrams, maps, work product, writings and any documentation related thereto in whatever format or media.  Said materials shall be the property of Client.

13.           WARRANTEES. THE SERVICES, MATERIALS AND CONTENT, ARE ALL PROVIDED TO CLIENT "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.

 

SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN CONTRACTOR GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION.

 

ADDITIONALLY, CONTRACTOR DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES, MATERIALS AND CONTENT, ARE SECURE OR ERROR FREE OR THAT CLIENT’S USE OF THE SERVICES, MATERIALS AND CONTENT WILL MEET CLIENT’S EXPECTATIONS, OR THAT THE SERVICES, MATERIALS AND CONTENT, IS CORRECT, ACCURATE, OR RELIABLE. CLIENT’S USE OF THE SERVICES, MATERIALS AND CONTENT IS AT CLIENT’S OWN RISK. CLIENT IS SOLELY RESPONSIBLE.

 

NEITHER CONTRACTOR NOR ITS OWNERS WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF CLIENT’S USE OF THE SERVICES, MATERIALS AND CONTENT, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE.

 

CLIENT HEREBY WAIVES ANY AND ALL CLAIMS ARISING OUT OF CLIENT’S USE OF THE SERVICES, MATERIALS AND CONTENT. BECAUSE SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THESE PROVISIONS MAY NOT APPLY TO YOU. IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN CONTRACTOR’S AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

 

            14.       Miscellaneous.

                  (a)        Governing Law; Forum. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of New Jersey, without giving effect to principles of conflicts of law of the state of New Jersey. The forum for resolution of any dispute arising from this Agreement or the parties’ contracting relationship shall be the State or Federal District Court located in Somerset County, New Jersey, to the exclusive jurisdiction of which the parties hereby irrevocably submit. The parties each waive their defenses of forum non conveniens and any similar defenses to the siting of trial in Somerset County, New Jersey.

                  (b)       Attorney’s Fees.  A party to this Agreement found by a final judgment of a court of competent jurisdiction to have breached this Agreement or any agreements attached hereto shall pay the reasonable attorneys fees incurred by the non-breaching party in seeking damages arising from such breach. 

                  (c)        Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.

                  (d)       Amendments and Waivers.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement.  No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.

                  (e)        Successors and Assigns.  Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives.  Client may not assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Contractor.

                  (f)        Notices.  Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Client’s books and records.

                  (g)        Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

                  (h)       Construction.  This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

                  (i)        Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.

                  (j)        Electronic Delivery.  The Client may, in its sole discretion, decide to deliver any documents related to this Agreement or any notices required by applicable law or the Client’s internal rules by email or any other electronic means.  Contractor hereby consents to receive such documents and notices by such electronic delivery and agrees to participate through an on-line or electronic system established and maintained by the Client or a third party designated by the Client.




 
 
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