LEGAL AGREEMENT | STANDARD TERMS AND CONDITIONS
Our goal is to exceed your expectations by providing high quality and professional consulting, development, marketing and web services to our clients. If you are not satisfied with the work, product(s) or marketing service(s), please tell us right away and we will attempt to correct any issue(s) within our control to ensure your complete and full satisfaction.
We provide an extensive portfolio and a preview of our project management system for you to view before hiring us for your project so you can see the quality level of our work and be completely comfortable working with us. For online marketing and advertising campaigns, we never guarantee a specific result online or in the search engine results because we do not control them, nor can we control user behaviors to your offer, product, service or solution. If you have any questions or reservations, please contact us prior to making a payment for services. Thank you!
Each time an invoice is paid, the then-current version of these terms and conditions will apply. We recommend that you check the date of our most recent update to these terms and conditions and review any changes since the last time you paid an invoice. All invoices reference these terms and conditions and provide the URL of this page. Although most changes are likely to be minor, we reserve the right, at any time and without notice, to add to, update, change, or modify these terms, simply by posting a new version on this page. Any such addition, update, or change will be effective immediately upon publishing said update and/or updating this page.
A. Billing and Invoicing General Terms and Conditions —
Think Big Enterprises, LLC DBA Brand Equation (hereinafter “Company” or “Contractor”) is the Company providing the products and/or services. Electronic and email communication are construed as a written notice in all communications by Company. These terms and conditions are referenced in all invoices issued by Company as these terms and conditions govern the invoiced services and the required amount due and payment(s) under the invoice. Invoices are due in full on the date of issue unless otherwise stated below. Company may accept a deposit or provide payment arrangements as a courtesy to Customer but this shall not be construed as a waiver of the full balance due Company. Any and all payments made on an invoice shall be deemed to be full acknowledgment and acceptance of these terms and conditions by the Customer. In general, once payment is made on an invoice there will be no refunds issued as we begin work immediately and often render or deliver the products and/or services immediately or very quickly after payment is made. Customer acknowledges and understands this and both parties agree that the invoice is an agreement, and, unless otherwise indicated by a primary or secondary written agreement, the invoice represents the full scope of the agreed-upon project and related products/services. Any changes, additions or revisions above and/or beyond the scope or the total time estimate provided in an invoice (where applicable) will incur additional billing charges in fifteen (15) minute billable increments at the standard rate of USD $125.00 per hour. Any scope changes or delays caused by the Customer may result in changes to the invoice and fees.
In general, an invoice is an agreement and shall become effective and due as of the date first issued by Company and terminate immediately upon final payment of the full balance due to Company. Invoices sent via email are considered as written notice to Customer of the balance due. The Customer shall pay the Fees on or before the date due in accordance with the Invoice but not later than 14 days past the invoice date. Software development and website design projects may not be canceled in any way once initial payment or the deposit is paid by Customer. Company requires a 60-day written notice of cancellation of any recurring advertising, marketing, technology, hosting, licensing or support service. Recurring products and services are defined as the same product or service being provided for two or more consecutive months. Written notice of cancellation may be emailed or sent to our corporate billing address at 4030 Wake Forest Rd. Suite 300, Raleigh, NC 27609. Company reserves all rights not expressly granted to Customer. Except as authorized in these terms and conditions, Customer shall not sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify or time share any work product provided or produced by Company to Customer. Company expressly retains and preserves all copyrights on original work product.
For any payment not received when due, Company may, in its absolute and sole discretion: (1) Suspend any and all services Company is providing Customer under the invoice(s); (2) assess an initial late fee of $75.00 for administration and processing; (3) charge interest at the highest rate permitted by law for any unpaid balance(s); (4) additionally, Company is entitled to recover any costs or fees expended in connection with the collection of unpaid invoices that become more than 30 days delinquent, including but not limited to, reasonable attorney’s fees, court costs and any related damages. The parties agree that this subparagraph shall apply regardless of the existence of any applicable primary or secondary written agreement and the parties agree that any primary or secondary agreement is amended to permit these rights.
B. Software Development & Web Design —
Customer acknowledges and understands that software and/or website development projects are NOT fixed-price projects in any way. The estimate of development and design hours provided in the invoice to Client by Company is based exclusively on a “BEST ESTIMATE” of total development time in hours projected to be spent by Company and its development team to design, develop and complete the project. If the Company’s total time spent on the development/design project exceeds the time estimate provided to Client via the invoice, Customer will be invoiced accordingly at the standard hourly rate. Invoices are due in full once issued and deposit to commence the project is paid. Payments for all development and design projects made to us in increments is only a courtesy to the client. Once a payment or deposit is made, it is non-refundable and the full balance of the invoice is due to Company without exception. If a project is canceled or postponed, all monies paid are retained by Company and full invoice balance notated on the invoice remains due to Company without exception.
Company exclusively owns a copyright on ALL of its own intellectual property such as software source code and custom website code, including but not limited to, text, content, images, designs, layouts, themes, videos, logos, technical data, documentation, programming code or other work product, that may be integrated into or become part of work being done for Customer. Customer acknowledges and agrees that the products, source code, object code, the software, the ideas, methods of operation, strategy, processes, know-how, aesthetic aspects, sub-systems and platform modules included in the products, graphical user interface(s) for the Products, and the look and feel of the Products are proprietary intellectual property which contain valuable trade secrets and all Intellectual Property Rights are owned exclusively by Company.
For website development projects, once the full balance of this invoice is paid to Company, ownership of the website passes to the Customer subject to all third-party licenses for third party technology and code used to develop the website (ie. WordPress® or Shopify®). Customer may elect to have Company continue to host the website code on the world wide web for Customer. Customer is free to choose the web hosting company of its choice and Company will migrate the website to the web host of Customer’s choice for a migration fee. Migration to a separate third party web host will have certain technical requirements that Customer will be responsible for if Customer chooses to use a third-party hosting service.
Customer acknowledges and understands that software and website development involves hundreds if not thousands of small details and that development of a new website or software product/integration often involves new ideas, evolutions, iterations or changes that the Customer would like implemented as the project develops over time. Customer also acknowledges that it is impossible for Company to anticipate Customer’s exact development and design wishes as the project gets underway and that the estimated time to complete a project in the invoice are solely a good faith estimate provided for the Customer’s own budget/resource planning and is in no way a guarantee the work performed and completed under the invoice will be completed under the time estimate provided. The actual amount of time required may be higher or lower for any number of reasons, many of which are stated herein. Any requests (oral or written) for changes, additions or revisions to the project AFTER development has started under this Agreement will incur an additional charge at the standard hourly rate. Company will notify Customer of any need to begin billing for additional development time in advance and Customer will need to approve the additional billing before Company continues any further work on the project. Customer acknowledges and understands that if Customer does NOT approve the additional time and billing needed to complete a project after the Company provides notice, the project will be suspended and may not be completed.
C. Print Design —
Design costs paid to Company are non-refundable. Printing costs paid to Company are refundable only if printing error is determined to be the responsibility of the Company. Company is not liable for damages incurred due to printing errors or problems from our files if full specifications from your printer were not provided or were incorrect/inaccurate, or if you supply the wrong files to your printer. Company never provides printing services, only print design. It is Customer’s sole responsibility to have design files printed and the Company has no responsibility in any way for the outcome of how Customer uses the design files provided by Company. Company will provide Customer with standard design file formats for a printer to use.
D. Research, Analysis and Setup Services —
Due to the nature of these services upfront payment in full is required before services are rendered or work product is released. No refunds are given for any of this setup, research, analysis, marketing, setup and/or service fees paid to Company.
E. Hosting (Websites and Applications) —
Hosting services are defined as a recurring service. Payments for previous months of any/all hosting services are non-refundable without exception. All hosting accounts require a minimum of 60 days written notice of cancellation or pay a $250.00 early termination/cancellation fee per hosting account at the sole discretion of Company. Hosting accounts are set up at the time of order and are allotted a specific amount of MONTHLY server resources, according to the plan purchased. If the client did not make use of the account, payment for service is still due. All hosting accounts will be terminated if an account invoice remains unpaid past 30 days of the date of issue.
Domain hosting services may be suspended or terminated at any time by Company if a hosting account invoice is not paid when due, or, if in the Company’s sole discretion, Company deems that the hosting account and the server resources are being used for sending spam email or if Customer uses the hosted domain to send email and Company’s domain is flagged by ISP’s or other 3rd parties for suspicious email sending practices. Sending Spam email is a serious offense in the digital world and can cause great harm to Company’s and Customer’s reputation, domain and brand assets. Company reserves the right to disable and/or terminate a user’s account if a user is found in violation of these terms and conditions, state or federal laws, or fails to provide proper written notice of cancellation. Accounts terminated due to policy, terms or legal violations will not be refunded. Failure to pay final balances due upon cancellation and/or the cancellation fee are violations of these terms and conditions.
F. Shopping Cart and 3rd Party Software Use and Licenses —
Development and/or use of WordPress and/or a shopping cart license grants customer a license to use the software on the domain specified when ordering, using web hosting services provided by Company only. You are not granted ownership of such software. Shopping cart licenses are non-refundable. Beyond 1 year, shopping cart licenses are non-transferrable to a new domain.
Third-Party Materials. Nothing in these terms and conditions or any related agreement shall restrict or limit or otherwise affect any rights or obligations Customer may have, or conditions to which Customer may be subject, under any applicable private or open-source licenses to any open source code contained in any work product or deliverable or any third-party licenses for third-party Code or Software contained in or which otherwise may be part of the deliverables. Company expressly disclaims any responsibility for any 3rd party software that may malfunction or become inoperable in part or in full as it relates to the work that Company is doing for Customer. Customer is responsible for compliance with all 3rd party software licenses and holds Company harmless from any liability that may arise from Company or Customer’s use of 3rd party software product or code. Third-party code bases include, but are not limited to, WordPress®, Shopify®, Magento®, cPanel®, WooCommerce®, Paypal®, Stripe®, Authorize.net®, and Google®.
G. Recurring Services: Marketing and Hosting Solutions —
Recurring products and services are defined as the same product or service being invoiced and provided for two or more consecutive months. Examples of these recurring services include, but are not limited to, content marketing, web presence, SEO, local search visibility, PPC, social media, reputation and location data management and directory listing marketing. Invoices are issued in advance of services being rendered on all recurring services. Payments for all digital marketing services are non-refundable without exception. All digital/internet/online marketing solutions are a pre-paid monthly recurring subscription and payments for the invoices issued each month are payments in advance for the services to be rendered. Quite often we expend hard costs in the beginning of the new billing cycle to provide for the subscribed products and/or services. We do not receive refunds on advertising dollars spent or labor hours expended/provided to conduct the work noted in the invoice, therefore we cannot and do not provide any refunds on any digital marketing services once payment is made for any reason. While we do not require a contract with any of our digital marketing packages, a 60-day written notice of cancellation is required to cancel any of these recurring invoiced products and services and shall be assessed as a cancellation fee in the event that Customer fails to provide Company with proper notice of intent to cancel services. No exceptions. Month one payment of your digital marketing solution shall be deemed as your authorization and acceptance of this policy. Written notice of cancellation may be sent to our mailing address at 4030 Wake Forest Rd. #300, Raleigh, NC 27609 or by email to admin[at]brandequation.com. Due to the nature of recurring services and the costs to Company to deliver them, recurring services will be suspended if an account invoice remains unpaid past 14 days of the date of issue. Unpaid invoices are delinquent and turned over to collections after 30 days.
H. Digital Advertising Solutions —
Digital advertising is a recurring product and service however digital advertising campaigns require significant setup and ongoing connections to many different third-party providers for audience targeting and advertising campaign deployment. Third-party platforms include, but are not limited to, Google Ads, Google Display Network, Facebook Ads, Instagram Ads, Geofence Ads and more. Due to the extensive and significant amount of setup and ongoing maintenance required for deploying digital advertising campaigns, ALL digital ad campaigns require a three (3) month minimum commitment. The start date of the campaign is the date the customer makes the payment on the first invoice for the actual ad campaign deployment. Please note that ad campaign setup is NOT part of the 3-month minimum commitment. Once the setup phase of the digital ad campaign is complete, Company issues Customer a separate invoice for the ad campaign which includes advertising spend, campaign management and optimizations, and ongoing monthly analysis and reporting. Company commonly calls the Digital Advertising Solutions it offers, “Conquest Equation” or “Ad Equation” or “Ad Signals.” Invoice line items that use these solution names are for digital advertising and fall under these terms accordingly. If customer cancels a digital advertising solution with Company prior to the 90-day minimum, Customer is responsible for paying the full amount of the 90-day term using the first month’s line item amount(s) as the monthly obligation to calculate the total minimum due for the three-month commitment requirement and the remaining balance fo the three-month minimum term shall be assessed as a cancellation fee in the event that Customer fails to provide Company with proper notice of intent to cancel digital advertising solutions.
I. Consulting Services —
Payments for all consulting services are non-refundable without exception. Consulting services provide immense value in the knowledge, advice, trade secrets, methods, strategies, tactics and other valuable consideration provided by us in and through the consultative process. Because of the nature of these services we do not provided refunds on any payments made on any invoice for consulting services by Company.
J. Credit Card Authorization | Chargebacks | Declines —
You authorize Brand Equation (Company) to bill all charges related to products and/or services provided by Company to the credit card provided by you and agree to pay these charges according to the cardholder agreement. You agree that there are no refunds for any reason under the terms and policies stated herein. You hereby irrevocably authorize and instruct the card issuer to deny any chargeback requests relating to this charge authorization at anytime and for any reason and agree that fax, digital or electronic transmission of this agreement and/or payment on any invoice is mutually acceptable and legally binding under these terms and conditions and constitutes acknowledgment of these terms and conditions as noted on the associated invoice.
If, at any time after you have placed your order and made a payment for the product/service from our site or over the phone, you subsequently attempt to file a chargeback with your credit card company or your credit card is declined, we reserve the right to have your work removed from the Internet immediately and cease all work in progress. As some of our services are delivered via email or the internet, the client will have access to all files so emailed or hosted in the cloud. In the event of a decline or chargeback being filed where you are still in possession of any of Company’s work product, we may commence any necessary legal action to prevent any unauthorized or unlawful use of our work or work product. All files are to be returned to us immediately and are not to be used by the client at any future stage until the decline or chargeback issue has been resolved and we have been compensated for work performed, products and/or services, or both.
If we receive a decline, chargeback or payment dispute (i.e. PayPal Dispute or Credit Card dispute) from a credit card company or bank, your service and/or project will be suspended without further notice. A $250.00 decline/chargeback fee (issued to recover fees passed on to us by our merchant account and/or back and labor to process), plus any outstanding balances accrued as a result of the chargeback(s) must be paid in full before service is restored, files delivered, or any further work is done. Instead of issuing a chargeback, contact us to address any billing issues or questions. Requesting a chargeback or opening a PayPal dispute for a valid charge from us is a fraud and is never an appropriate or legal means of obtaining a refund. Please read and make sure you fully understand our billing, payment terms and refund policy prior to making a payment. If any arbitration or legal proceeding is brought for the enforcement of these terms and conditions under this Agreement, or because of an alleged breach, default or misrepresentation in connection with any provision of this Agreement, or other dispute concerning this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees incurred in connection with such arbitration or legal proceeding. This agreement shall be governed by and construed in accordance with the laws of the state of Florida. Both parties agree to the exclusive jurisdiction and venue of the courts and Hillsborough County, Florida or Wake County, North Carolina.
K. General —
During the course of providing products and services to Customer, Company may document, record, notate and/or transcribe meetings conducted with and on behalf of Customer. Company retains full and complete ownership of all work product and deliverables including any Intellectual Property rights, copyrights, design rights and know-how for any Products or Services delivered under all related invoices and any intellectual property developed during the course of performing the Services. Customer acknowledges and agrees that the products, source code, object code, software, the ideas, methods of operation, processes, know-how, aesthetic aspects, sub-systems and marketing strategies are proprietary materials which contain valuable trade secrets and that all Intellectual Property Rights to the Products are owned exclusively by Company and its respective third parties, subject to any License between Company and its respective third parties. In addition, Company shall own all improvements to the Company’s deliverables and services, enhancements to the Company’s deliverables and services, and derivative works of the Company’s deliverables and services. Customer hereby assigns and will cause Customer’s employees and independent contractors to assign, to Company, all of Customer’s rights in and to such deliverables and intellectual property.
Reservation of Rights. Contractor reserves all rights not expressly granted to Customer. Except as expressly authorized in writing by Company, Customer shall not sell, rent, lease sublicense, distribute, transfer, copy reproduce, display, modify or time share any Deliverable.
L. DISCLAIMER OF WARRANTY —
DISCLAIMER. EXCEPT AS EXPRESSLY DESCRIBED IN THIS WARRANTY SECTION, CONTRACTOR MAKES NO WARRANTY OF ANY KIND. CONTRACTOR DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO SERVICES AND DELIVERABLES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, GOOD TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE CUSTOMER. CONTRACTOR DOES NOT WARRANT THAT THE SERVICES, ANY WORK PRODUCT OR DELIVERABLE PROVIDED WILL BE WITHOUT DEFECT OR ERROR.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN CONTRACTOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES (COLLECTIVELY, “AGENTS”) SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE PRODUCTS AND SERVICES AND THE APPLICATION OF THE DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CORRECTNESS, OR OTHERWISE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES EXPRESSLY WAIVE THE APPLICABILITY OF THE UNIFORM COMMERCIAL CODE AND ANY OTHER STATUTORY COMMERCIAL TERMS.
Exclusions. This warranty excludes non-performance issues that result from third-party hardware or firmware malfunction or defect; software not developed by Company; incorrect data or incorrect procedures used or provided by Customer or a third party, or defects which are outside the reasonable control of Company. Customer will reimburse Company for its reasonable time and expenses for any Services provided at Customer’s request to remedy excluded non-performance issues. This warranty shall immediately cease if Customer or any third party modifies any portion of a Deliverable and/or modifies Customer’s system so that a Deliverable is no longer functional or appropriate.
M. LIMITATION OF LIABILITY —
TO THE EXTENT THAT ANY PRODUCTS AND SERVICES ARE SUBJECT TO A SECONDARY AGREEMENT, THEN COMPANY HAS NO LIABILITY IN RELATION TO SUCH PRODUCTS AND SERVICES UNDER THIS AGREEMENT AND THE PARTIES AGREE THAT – EXCEPT TO THE EXTENT EXPRESSLY PERMITTED UNDER THIS AGREEMENT – ANY CLAIM SHALL ONLY BE MADE UNDER THE TERMS OF THE APPLICABLE SECONDARY AGREEMENTS. THE CUSTOMER AGREES THAT IT CANNOT SEEK AWARDS FOR THE SAME DAMAGES UNDER BOTH THIS AGREEMENT AND ANY SECONDARY AGREEMENT.
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THESE TERMS AND UNDER ITS SECONDARY AGREEMENTS FOR THE PRODUCTS AND SERVICES EXCEED THE ACTUAL FEES PAID BY THE CUSTOMER TO COMPANY FOR THOSE PRODUCTS AND SERVICES AS DETAILED IN THE APPLICABLE INVOICE OR ORDER FORM.
COMPANY AND ITS AGENTS SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT DAMAGES, SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, OR INCIDENTAL DAMAGES, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA LOSS, AND LOSS OF BUSINESS OPPORTUNITY EVEN IF COMPANY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OR SUCH DAMAGES OR CLAIM.
N. CONFIDENTIALITY AND NON-DISCLOSURE
Each party agrees to keep in confidence any confidential or proprietary information it receives from the other party. “Confidential Information” means any and all business and technical information provided by or which will be provided or disclosed by Company to Customer concerning Company’s respective interests and activities which the Company deems proprietary and confidential, including but not limited to, Company’s communications and actions with customer (verbal and non-verbal), customers, software technology, software systems, source code, object code, design details, user interfaces, databases, financial information, trade secrets, know-how, algorithms, processing procedures and equipment, standards and specifications, product samples, product development plans, proposed products and services, business plans, business information, customer lists, prices, market and sales information and plans, search engine optimization know-how and methods, market research and analysis, keyword and vertical market research, niche and local search marketing strategies, business plans, internal materials, data, reports, ideas and any non-public information which concerns the Company’s business and operations disclosed in any form or format, including, without limitation, written or other tangible medium, graphic, oral, visual, digital, electronic and/or machine readable or other non-tangible medium (hereinafter “Confidential Information”). Customer agrees that it shall not disclose any of Company’s Confidential Information to third parties, including but not limited to, any public, private or online forum or reviews website. Customer’s payment on an invoice shall be construed as Customer’s acknowledgment and agreement with these terms and conditions of Confidentiality and Non-Disclosure concerning the relationship between Company and Customer and any Confidential Information that Customer may acquire during the course of conducting business with Company. Customer agrees that any breach related to Confidential Information may cause irreparable harm to Company. As a result of such breach, Company shall be permitted to seek injunctive relief to prevent and limit any such harm.
The Customer hereby acknowledges having read these terms and conditions and hereby agrees to be bound by said terms and conditions. Payment on any invoice by Customer shall be deemed as customer’s acknowledgment, understanding and agreement to be bound by these terms and conditions.
ADDRESS FOR ALL WRITTEN NOTICES
4030 Wake Forest Rd. Suite 300
Raleigh, NC 27609
PLEASE NOTE THAT THESE TERMS AND CONDITIONS MAY BE MODIFIED FROM TIME TO TIME AS NEEDED IN THE SOLE DISCRETION OF THE COMPANY.
Version 4.0 – Updated June 1, 2020