Terms & Conditions

Term. The initial term of this agreement (herein the “Agreement”) shall commence when the first advertisement, or other marketing service or product being provided to Client (as hereinafter defined) as contemplated herein goes “live” to the public or is ready for print, as determined in BP’s (as hereinafter defined) exclusive discretion, and following notice of the same being given to Client by BP (the “Commencement Date”), and shall continue to the first day of the month that is twelve months after the first day of the month immediately following the Commencement Date (herein the “Term”). The term of the Agreement with respect to websites shall be as otherwise agreed in writing by BP and Client. This Agreement shall automatically renew for subsequent twelve-month periods (herein also referred to as the “Term”) unless either party gives the other written notice of termination of this Agreement at least sixty (60) days prior to expiration of the then-current Term.
Invoicing and Payment. Payment for services and/or products provided by BigPxl, LLC (herein “BP”) will be made by _____________________________________ (herein “Client”) on the first date of each month, in advance, via credit card or ACH, for the entirety of the Term; during the Term, Client shall ensure that BP has Client’s updated credit card and/or bank account and routing information for any ongoing charges contemplated in this Agreement. The total monthly fee due and owing to BP shall be paid by Client for the first month of the Term, even if the Commencement Date falls on a day other than the first day of the month; however, if the Commencement Date falls on the 16^th day of the month or later, BP shall pro rate the first month’s payment if requested by Client. Any additional start-up or initial fees described below will also be paid by Client on or before the Commencement Date. Any declined or returned payments shall constitute a late payment, and Client will be charged a $100.00 insufficient funds/returned payment fee, payable to BP on demand, in the event any payment is not made within five (5) days of its due date. In the event any payment contemplated in this Agreement is not timely received, including but not limited to a declined or returned payment, interest will be charged on the amount due and owing starting on the fifth (5^th) day after the payment is due through the date the payment is made in full at the rate of eighteen percent (18.0%) per annum; said accrued interest shall be payable on demand. Client shall also pay on demand all costs of collection incurred by BP on any unpaid amounts due and owing to BP, including but not limited to attorney fees, legal support staff fees, litigation expenses, expert witness fees, and costs, whether or not a collections lawsuit is actually filed and whether or not BP prevails with respect to or is able to collect the principal amount due from Client.
Initial Fees. The up-front or initial fees required under this Agreement are described as follows, and are due and payable by Client to BP as set forth in Paragraph 2 above, via credit card or ACH: ________________________________________________________________________________________________
Scope of Work. During the Term, BP shall provide those products and/or services, and all reasonable and necessary extensions thereof, more particularly described in Schedule “A” attached hereto and incorporated herein by this reference (herein the “Scope of Work”). The parties may at any time amend the Scope of Work described herein in a writing executed or acknowledged by both of them, and such amendment shall automatically become part of and be incorporated into this Agreement. Upon substantial completion of the Scope of Work, as determined in BP’s discretion, BP shall submit the Work Product (as hereinafter defined) to Client for review and approval, which shall not unreasonably be withheld. The parties agree that Client may request revisions to the Work Product as to content, design, advertising strategy, and the like; whether Client is charged an additional fee for edits shall be determined in BP’s reasonable discretion. If Client is charged by BP for revisions to the Work Product, the time spent preparing the revisions shall be billed, and payable by Client on demand, at BP’s prevailing hourly rate for each of the professionals working on the revisions .
Ownership and Approval of Work Product Client hereby agrees that the materials, content, design, copy, domain, advertisements, hosting, ideas, strategies, development, and other work product prepared by BP, or acquired by BP from a source other than Client for the benefit of Client, pursuant to the Scope of Work (herein the “Work Product”) shall remain the exclusive property of BP, regardless of whether the Scope of Work is partially, substantially, or fully complete, until Client pays for and provides approval in writing of the same, which shall constitute approval and acceptance by Client of all aspects of the Work Product, at which time BP shall upon request tender to Client all passwords and other necessary information to fully transfer and transition the Work Product to Client or Client’s designee. Upon receipt from Client of approval of the Work Product and payment in full of the amount(s) contemplated herein, the Work Product shall become the exclusive property of Client, BP shall retain no licenses, rights or claims to the Work Product, and BP shall have no further obligation to revise or amend the Work Product without both an amendment to the Scope of Work and receipt of any past and any additional correlative payments due from Client. If, however, Client fails to approve the Work Product within a reasonable period of time, as determined in BP’s reasonable discretion, then the Work Product shall remain the exclusive property of BP, regardless of its stage of completion, in which case, Client understands and agrees that Client will not receive a refund of fees paid to BP pursuant to this Agreement regardless of what amount has been paid to date; further, if in such event, Client has not yet paid twenty-five percent (25.0%) of the total amount contemplated herein as being paid by Client during the then-current Term, then Client shall pay to BP on demand the difference between what has been paid by Client to date and the twenty-five percent (25.0%). Client shall have no ownership in, licenses, rights or claims to products, systems, applications, processes, inventions, creations, solutions, programs, or other work product that is developed or owned by BP independently of this Agreement, before or during the Term, that is primarily for the benefit of BP, to facilitate its performance hereunder or the completion of the Scope of Work, and that is not a material part or component of the Work Product.
Client Confidentiality and Non-Disclosure. The parties agree that BP will likely become privy to Proprietary Information (as hereinafter defined) of Client pursuant to this Agreement. “Proprietary Information” means information about, or obtained by BP from, Client that is of a business nature such as but not limited to records, lists, knowledge of customers, vendors, methods of operations, costs, purchasing, profits, markets, artwork, logos, labels, know-how, ideas, contact and identifying information, payment information, processes, designs, drawings, ideas, techniques, applications, specifications, technology, programs, codes, assemblies, formulae, configurations, protocols, schematics, interfaces, trade secrets, data, and the like that is not in the public domain prior to disclosure and that does not become a part of the public domain after disclosure by publication or through legal means. BP shall use the Proprietary Information solely for purposes of completing the Scope of Work and not for any purpose of competition or in a way that would or reasonably could be detrimental to Client. BP shall not at any time during the Term of this Agreement or thereafter, directly or indirectly, disseminate Proprietary Information unless advance consent is given by Client. BP shall inform its employees, independent contractors, and agents of the confidential nature of Proprietary Information and shall require such persons to abide by the confidentiality provisions of this Agreement.
Termination. BP may terminate this Agreement and suspend performance of any and all services and products contemplated herein if, in its reasonable determination, any of the following have occurred or will imminently occur (collectively referred to herein as “Cause”): (a) Client has failed to timely pay any amount due and owing to BP more than once during the period in which this Agreement is in effect; (b) Client, or any of its principals, is insolvent, has filed for receivership, or has filed for relief or been involuntarily put under the purview of the United States Bankruptcy Code; (c) Client, or any of its principals, is subject to money judgments entered by one or more courts of competent jurisdiction anywhere in the world that, in the aggregate, exceed Twenty Thousand and 00/100 Dollars ($20,000.00); (d) the services or products being provided to Client pursuant to this Agreement are seized or levied upon; (e) Client fails to maintain consistent or professional communication with BP such that BP has for an unreasonable period of time been without direction or responses from the Client, or there is a break-down in communication with the Client, such that BP cannot properly complete the Scope of Work, as determined in BP’ exclusive discretion; or (f) Client’s representations to BP or the content of the copy or materials given by Client to BP for completion of the Scope of Work is materially inaccurate, false, misleading, or constitutes a violation of applicable law. In the event BP elects to terminate this Agreement for Cause, BP shall provide Client a ten (10) day written notice and right to cure, after which point, if the issue giving rise to the notice is not wholly cured, then BP may immediately and without further notice to Client terminate this Agreement and terminate or discontinue all services and products contemplated herein without having any further obligations to perform work, provides services or products, or transfer or transition information, content or any part of the Work Product to Client or any other third party. In the event this Agreement is terminated for reasons other than for Cause, BP shall exercise reasonable efforts to promptly transition and transfer information, content, services, products, and the Work Product for which Client has paid BP either to Client or to a third party upon receipt of Client’s written request. Client may terminate this Agreement if, in its reasonable discretion, BP has materially breached its performance obligations pursuant to this Agreement and if, after Client has provided to BP a ten (10) day written notice explaining the alleged breach and providing a right to cure, BP fails to materially cure or take the necessary steps to begin to materially cure the alleged breach within ten (10) days after receipt of the written notice. Regardless of when or how terminated, Client shall remain liable for all amounts due and owing to BP pursuant to this Agreement, pro-rated as necessary if less than a full month, as determined in BP’s discretion, through the date the Agreement is terminated.
Jury Waiver. The parties waive the right to a jury trial in any legal action, proceeding, or counterclaim brought by either of the parties against the other, arising out of the Agreement, the transactions contemplated herein, or acts or omissions by either party, whether based on contract, tort or any other theory. The parties recognize the cumbersome nature and expense of jury trials and wish to avoid them.
Force Majeure. If performance by BP of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond BP’ reasonable control (“Force Majeure”), and if BP is unable to carry out its obligations and gives Client prompt written notice of such event, then the obligations of BP invoking this provision shall be suspended to the extent of necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm, casualty, illness, injury, general unavailability of materials or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots or wars, or strikes, lock-outs, work stoppages, or other labor disputes or substantial changes in the law and regulations governing this Agreement. BP shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
Entire Agreement. This Agreement contains the entire Agreement of the parties, and there are no other promises or conditions in any other contract whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral Agreements between the parties.
Severability. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
Governing Law and Forum Selection. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Missouri, regardless of the choice of law provisions of Missouri or any other jurisdiction. The parties expressly agree that exclusive personal and subject matter jurisdiction and venue for any and all causes of action arising out of or relating to this Agreement shall be in the Circuit Court of Greene County, Missouri.
Notice. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person, or by certified mail, return receipt requested, to the addresses set forth below, or if by electronic mail, delivery receipt requested, to the addresses set forth below. The date of such notice shall, in the case of personal delivery and electronic mail, be the date sent and, in the case of certified mail, three (3) business days after being placed in the mail.
Waiver. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
Representations. Both parties warrant and represent to the other that the person executing this Agreement is authorized to do so. Client represents and warrants to BP that the information and copy, including but not limited to the Proprietary Information, given to BP for completion of the Scope of Work is materially true and accurate, is owned by or contractually licensed by Client, and at the time of disclosure comports with and, upon going “live” or to print pursuant to this Agreement, will comport with all applicable laws pertaining to consumers, advertising, representations, trademarks, copyrights, patents, and the like.
Warranties. BP makes no representations or warranties, express or implied or otherwise, concerning the Scope of Work or its obligations pursuant to this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE GOODS AND SERVICES PURCHASED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Website Accessibility. If Client has selected to receive accessibility review, recommendations and/or conformance services in a SOW, Order, or similar document, BigPxl shall provide such accessibility services. BigPxl shall use reasonable efforts to provide, at the time of delivery, applicable services in substantial conformance with the Web Content Accessibility Guidelines (WCAG). Client understands and agrees that certain accessibility standards, including within the WCAG contain subjective elements, are constantly evolving as law and technology evolve, and that courts and government agencies do not agree as to what the law requires as related to accessibility. In the event BigPxl, by persuasive evidence or any court decision, is determined to have not performed as required under this section at the time of delivery, BigPxl shall use commercially reasonable efforts to reperform and cure such deficiency at no additional cost to Client, as Client’s sole and exclusive remedy. Client understands and agrees that although BigPxl has certain obligations above regarding accessibility, such responsibilities end at the time of delivery. Unless stated otherwise in a SOW, once Client take control of the ongoing operation of its website, in whole or in part, Client is responsible for ensuring the accessibility and legal compliance of its website. For Client’s and BigPxl’s mutual protection, the parties affirm that nothing set forth in this agreement shall be deemed to be acknowledgement or stipulation by the parties hereto that any particular legal obligation exists or does not exist under existing applicable federal, state or local law as accessibility and/or WCAG conformance.
BP Scope: No Legal Services or Compliance Services. Client understands and agrees: (a) That BP is not a law firm and does not provide legal services or legal or compliance advice; (b) That Client and not BP is responsible for Client’s own compliance with applicable laws and regulations; (c) If BP provides Client with any document with legal implications (for example and without limitation, a website privacy policy, terms, or other document), such document is provided as a sample only and Client should consult its own legal counsel as to what document, if any, may be appropriate and/or required for Client’s specific legal compliance needs.
No Consequential or Indirect Damages and Limitation of Liability. IN NO EVENT SHALL BP BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT OR THE SCOPE OF WORK. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF EACH PARTY AND ITS ATTORNEYS SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL BP’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID, OR CONTEMPLATED TO BE PAID, FOR THE TOTAL ONE-YEAR TERM DURING WHICH THE INCIDENT OR OCCURRENCE GIVING RISE TO THE CLAIM TOOK PLACE.
Paragraph Headings. Paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Assignment. BP may assign this Agreement, and all performance obligations contemplated herein, at any time and without advance notice to Client provided that the assignee is reasonably equipped to perform as contemplated herein and the ownership of the assignee is materially the same as the ownership of BP; in all other instances, BP may assign this Agreement, and all performance obligations contemplated herein, with written consent from the Client, which shall not unreasonably be withheld. Client may assign this Agreement, and all performance obligations contemplated herein, with written consent from BP, which shall not unreasonably be withheld, but BP may in its exclusive discretion and prior to giving consent require the assignee to sign a new agreement that is substantially similar to this Agreement.
Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the undersigned and their permitted respective heirs, personal representatives, successors, and permitted assigns.
Presumption. Both parties hereto have had the opportunity to consult with legal counsel concerning the terms, meaning, and consequences of this Agreement; therefore, this Agreement shall not be construed for or against either party by virtue of the drafting hereof.