By completing your purchase or payment, you agree to the following terms:
1. Limited Liability. Big Shifter, LLC shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and non-performance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by Client to timely furnish information or approve or disapprove work, or faulty performance by Client or others, including third-party contractors hired by Agency or by Client. Agency shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement.
2. Relationship of the Parties. Big Shifter, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. In no way is Big Shifter to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.
3. Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Wyoming.
5. Complete Agreement. This Agreement and any attachments constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.
6. Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.
7. Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
8. Use of Client’s Name. This agreement authorizes Big Shifter use of Client’s name and logo for use on Big Shifter’s publicly accessible client list.
9. Successors and Assigns. This Agreement is not assignable in whole or in part without Big Shifter’s written consent. Any attempt to assign this Agreement without such consent will be null and void.
10. Read and Understood. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions
11. Duly Authorized Representative. Each party warrants that its representative whose signature appears on this contract is duly authorized by all necessary and appropriate corporate actions to execute this Agreement.
12. Hours of Operation. Big Shifter’s working hours are 9am-5pm MT, Monday-Friday, excluding federal holidays. Work outside these hours will be considered on a case-by-case basis. Failure to perform work outside the hours of operation will not be deemed a breach of contract.
13. Disclaimer of All Other Warranties. Big Shifter does not warrant that the all services will meet the client’s expectations or requirements. The entire risk as to the quality and performance is with client. Except as otherwise specified in this agreement, Big Shifter provides its services “as is” and without warranty of any kind. the parties agree that (a) the limited warranties set forth in this contract are the sole and exclusive warranties provided by each party, and (b) each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this agreement, performance or inability to perform under this agreement, the content, and each party’s computing and distribution system.
14.1.1 Clients’ Responsibilities. Client agrees to perform all tasks assigned to Client as set forth in this Agreement or a Service Order, and to provide all assistance and cooperation to Big Shifter in order to complete timely and efficiently the Website. Big Shifter shall not be deemed in breach of this Agreement, the Services, a Service Order, or any milestone in the event Big Shifter’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Service Order, or this Agreement. In the event of any such failure or delay by Client (i) all of Big Shifter timeframes, milestones, and/or deadlines shall be extended as necessary; and (ii) Client shall continue to make timely payments to Big Shifter as set forth in this Agreement and any Service Order(s) as if all time frames, schedules, or deadlines had been completed by Big Shifter.
14.1.2 Design. The design of the Website shall be in substantial conformity with the material provided to Big Shifter by Client. Website consultation will be provided according to the number of pages purchased. Client will provide direction to Big Shifter via responses to written questionnaire and subsequent correspondences delivering content for Website construction within. Website text must be supplied by the Client as the Services does not include website copywriting. Development of web pages will take place on the agreed upon Content Management Solution (CMS). All server technical issues are to be handled by Big Shifter unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. Big Shifter shall not include, as determined in its sole discretion, any of the following in the Website or in Client’s directory on the CMS’s web server: text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links to other websites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Client); invisible text, abusive metatags (i.e., text that is present only when a “Webcrawler” or other web indexing tool accesses the Website), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.
14.1.3 Coordination Steps. Client understands that submissions for Website development are limited to one major revision. Client must provide as much instruction and direction as possible within the one major revision via the revision form. Website revisions in addition are charged at $100 per hour. Client agrees to pay invoices for changes and revisions in addition to the first major revision.
14.1.4 Completion Date. Big Shifter and the Client shall work together to complete the Website in a commercially reasonable manner. Client must supply Big Shifter all requested information to complete text and graphics content on all web pages contracted for within two (2) weeks of the date of the executed purchase unless otherwise noted. If Client has not submitted complete text and graphics content within three (3) weeks after the purchase is executed, an additional continuation fee of ten percent (10%) of the total price specified in the Proposal will also be assessed each month until the Website is published.
14.1.5 Intellectual Property Rights & Website. Client acknowledges, understands and agrees that Big Shifter may use its own and/or may purchase third party licenses for products or services that are necessary for Big Shifter to design and develop the Website. Such products may include, but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“Outside Content”) which Big Shifter deems necessary to purchase on behalf of Client to design and develop the Website. Client further acknowledges and understands that any Outside Content used to design and develop the Website is owned by Big Shifter and/or such third parties and cannot be transferred to Client and is hereby specifically not transferred to Client and shall remain the property of Big Shifter and/or such third parties. Outside Content which is owned and/or purchased by Big Shifter may be used in the design and/or development of other websites separate from Client. Client and Big Shifter also agree that the design and development of the Website may include source code, documentation, and/or application programs that were previously written or developed by Big Shifter and modified to meet Client’s specific requirements (the “Code Content”). Big Shifter shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Client (upon buy-out) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. Big Shifter and its subcontractors retain the right to display graphics and other web design elements of the Website as examples of their work in their respective portfolios and any sales and marketing materials. Client is responsible for covering expenses requested above and beyond the capabilities of the approved CMS.
14.1.6 Website Hosting and Registration Fees. Big Shifter Services do not include website hosting and registration fees. All additional hosting and registrations fees are the responsibility of Client.
14.1.7 Website Maintenance. All changes and updates in addition to the first revision must be submitted through the client services portal. Tickets will be generated for follow up. Client agrees to pay invoices for additional work at a rate of $100/hour.
14.2 Social Media
14.2.1 Social Media Management. If contracted, Big Shifter will provide Client with social media postings on any or all of Client’s prescribed social media platforms for one month, according to the Client’s purchase order.
14.2.2 Social Media Advertising. Big Shifter will provide Client with ad design, copy, and programming for one month, according to the Client’s purchase order.
14.2.3. Client Responsibilities. Client is responsible for final approval of scheduling and disseminating posts. Client is responsible for all ad payments directly to the social media platform.
14.2.4. Client Acknowledgments. Big Shifter is not liable for any losses/perceived losses incurred by delayed dissemination of Client posts or scheduled posts. Big Shifter is not liable for any losses/perceived losses incurred by misspellings, bad links, or mistaken content posted on Client’s social media platforms.
14.3 SEO Services. Big Shifter agrees to provide Client with SEO Services as described in the purchase order. Big Shifter is authorized to use the specific keywords and/or phrases set forth in follow up conversations and to be confirmed in writing for development, improving the ranking of, and/or positioning the contents of the Client’s URL(s) in search engines and/or directories. SEO Services are intended to provide the Client with preferential positioning in selected search engines and report results on an ongoing and timely basis.
14.3.1 Client Responsibilities. For the purposes of providing these SEO Services, Client agrees: to provide Big Shifter with FTP access to its websites for uploading new pages, and making changes for the purpose of SEO Services optimization or approval to go through a third party. Client agrees to authorize Big Shifter use of all Client’s logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by Big Shifter for search engine positioning and optimization. Client agrees that if the website(s) is light in textual content, Client will provide additional relevant text content in electronic format for the purpose of creating additional content or web pages.
14.3.2 Client Acknowledgements. Client understands, acknowledges and agrees that Big Shifter has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. The website(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity. Client acknowledges that some search engines and directories may take as long as two (2) to four (4) months, and in some cases longer, after submission to list the website(s). Client acknowledges that occasionally, search engines and directories will stop accepting submissions for an indefinite period of time. Client acknowledges that occasionally, search engines and directories will drop listings for no apparent or predictable reason. Often listings will “reappear” without any additional submissions. Should the listing not reappear, Big Shifter will re-submit the website(s) based on the current policies of the search engine or directory in question. Client acknowledges that Big Shifter ShifterMedia is not responsible for changes made to the website(s) by other parties that adversely affect the search engine or directory rankings of the website(s).
14.3.3 SEO Services. Big Shifter will research keywords and phrases to select appropriate, relevant search terms. The number of keywords is set forth in written documentation and discussion to follow. Additional keyword work will require a separate work order. Services also include submitting Client’s pages to search engines and directories as set forth in the purchase order. Big Shifter will provide reporting showing rankings in the major search engines and under which keywords. Big Shifter will review the site architecture and work with the web team to improve SEO site structure problems.
14.4 Search Engine Advertising. Big Shifter will setup a new account on the Google, Yahoo, and/or Bing Adwords platforms for each new Pay Per Click (“PPC”) Client. Big Shifter will create a single campaign and configure the appropriate features including as determined by the monthly budget, geo-targeting for the correct area for the ads to display, selecting the correct search network(s), and devices to display the ads. Big Shifter will also create ad group(s), text-based ads, and include targeted keywords for the ad group(s). Big Shifter will provide monthly reporting displaying results specific to keyword phrase impressions served and click through rates.
14.4.1 Client Responsibilities. If necessary, Client promises to approve initial setup which would include, keyword phrases, adword groups, and creative within forty eight (48) hours of receipt. Client is responsible for all direct ad payments to the search engine.
14.4.2 Client Acknowledgements. Big Shifter in its sole discretion can adjust the campaign settings. Any adjustment to the campaign duration shall not affect the obligation of the Client to pay the full amount noted in the agreement.
14.5 Display Advertising. Big Shifter will create and execute display advertising campaigns on behalf of Client. Display advertising campaigns can run on the Client’s online and mobile properties and/or online and mobile properties associated with advertising networks for which the Big Shifter has a relationship. Big Shifter will provide Client with display and site retargeted display advertising and/or geotargeted programming and/or behaviorally targeted programming as stipulated in the purchase order.
14.5.1 Ad Unit Creation. Big Shifter will provide ad creation services and serve ads specific to the placements, sizes, and targeting directions listed in the agreement. Big Shifter will own the copyright to the ads that are served.
14.5.2 Client Responsibilities. Client promises to supply sufficient materials in a timely manner to create ad units. Client promises to approve ad creative within forty eight (48) hours of receipt. Client is responsible for ad payments to the display network.
14.5.3 Client Acknowledgements. Retargeting is based on pixeling (placing a cookie on the browser) of a Client site visitor or search engine user who enters a relevant search phrase based on the Client program. No personalized data is aggregated by Big Shifter and no data is transferrable to the Client. Big Shifter in its sole discretion can adjust the campaign settings. Any adjustment to the campaign duration shall not affect the obligation of the Client to pay the full amount noted in the agreement.
14.6 Email Marketing. By default Big Shifter utilizes MailChimp to send emails and manage emails lists. Client can specify alternate services for email list management.
14.6.1 Account Creation. Big Shifter will create and execute a unique MailChimp account for the client. Big Shifter will upload Client’s existing email list and program it according to the agreement. If the list needs to be cleaned per MailChimp’s request, the Client will reimburse Big Shifter for expenses to clean the email list for use. MailChimp charges based upon the size of the email list in use. Client agrees to pay for MailChimp’s email hosting service.
14.6.2 Email List Management. The email list is the sole property of the Client and will not be used by Big Shifter for any other purposes without expressed written consent.Find and replace
14.6.3 Client Responsibilities. Client promises to supply sufficient materials in a timely manner to create the email. Email material must be submitted by Client to Big Shifter 24 hours before scheduled send time. Client is responsible for final approval of content, scheduling and disseminating emails. Client is responsible for payment to the MailChimp email system.
14.6.4 Client Acknowledgments. Big Shifter is not liable for any losses/perceived losses incurred by delayed dissemination of Client emails. Big Shifter is not liable for any losses/perceived losses incurred by misspellings, bad links, or mistaken content posted in Client’s emails. Big Shifter is not liable for any losses/perceived losses incurred by damaged email lists.