Last Updated: February 11, 2019
American Underground, LLC d/b/a Big Top (“Big Top”) provides a range of advertising, membership, sponsorship activities, and/or services which may include events (collectively, “Services”). These terms and conditions (the “Terms” or the “Agreement”) relate to all services provided by Big Top to you (“Company”) under the “Big Top” brand.
2.1 Introductory Subscription. Company may register for a Introductory Subscription (as described in Exhibit A – Big Top Memberships) and create a company profile on the Big Top platform/site. Big Top reserves the right to terminate membership at any time.
2.2 Standard Subscription. The term of the Standard Subscription (as described in Exhibit A – Big Top Memberships) will begin on the last date the Order is signed by both parties (the “Effective Date”) and will renew on a month-to-month basis. Company acknowledges that the Standard Subscription has an initial and recurring payment and the Company accepts responsibility for all recurring charges prior to cancellation. The Standard Subscription will be automatically extended for successive monthly periods, at the then-current subscription rate. Company may cancel its Standard Subscription, subject to the provisions of Section 2.5 below, by visiting the Company’s account profile page and making such election. Big Top reserves the right to terminate membership at any time, and in such event, Company will receive a pro rata refund of fees paid for Services not yet executed.
2.3 Cancellations. Cancellation of a Standard shall result in the Company being automatically converted to a Introductory Subscription. If a Company no longer wishes to maintain its Introductory Subscription and to remove all data from Big Top public site, Company may make such election by visiting its account profile page. UNLESS AS OTHERWISE PROVIDED IN THIS AGREEMENT, REFUNDS WILL NOT BE PROVIDED FOR ANY SUBSCRIPTION. BIG TOP DOES NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED MID-MONTH OR MID-TERM. In such circumstances, the Company will continue to have access to their current Big Top Membership until the end of the monthly billing cycle or the minimum subscription period, whichever is applicable.
Payment Terms. Unless otherwise stated in the Order, all initial payments will be made upon execution of the Order and charged to the credit card that the Company provides Big Top. It is the Company’s responsibility to update and maintain the payment method associated with your account. You may update your payment method at any time by accessing your Big Top account. If at any time, Big Top is unable to charge your payment due to insufficient funds, expired or invalid account details, or otherwise, the Company shall remain responsible for all fees owed and Big Top reserves the right to withhold Services, and to avail itself of any other legal remedy. Any and all collection costs of Big Top shall be borne by Company, including reasonable attorney's and third-party fees.
Big Top may submit monthly periodic charges to the credit card provided without further authorization from the Company until the Company provides prior notice that it has terminated this authorization as required by the Terms or wishes to change its payment method. Such notice will not affect charges submitted before Big Top reasonably could act.
Taxes. All payment amounts set forth herein are exclusive of all applicable taxes (including, but not limited to sales, use, privilege, value added and excise taxes) and Company will bear responsibility for all such taxes and duties. If Company is exempt from such taxes and duties, Company will provide Big Top with the required documentation of such exemption.
Marks. Company hereby grants Big Top a revocable, royalty-free, non-transferrable, non-exclusive license to use the name, logo, slogan, or other marketing materials (collectively, “Marks”) of Company in the format and specification as directed by Company, solely for the purpose of promoting and marketing the Services in which Company is participating (including pre-event and post-event promotion), provided that Big Top will not modify any Marks of Company in any way. Company agrees that it will not use the Marks of Big Top without first procuring Big Top’s written authorization, which may be withheld in Big Top’s sole and absolute discretion. Company’s participation in a Big Top event shall not be considered as endorsement of or approval of the activity of Company nor for the purposes it represents. Each party shall use the other party’s Marks solely in accordance with the other party’s trademark usage guidelines and quality control standards provided by such other party as the same may be updated from time to time. If either party is notified in writing by the other party that any use does not so comply, such party shall immediately remedy the use to the satisfaction of the other party or terminate such use. Neither party shall use, register or attempt to register in any jurisdiction any Mark that is confusingly similar to or incorporates any of the other party’s Marks. All uses of a party’s Marks, and all goodwill associated therewith, shall inure solely to the benefit of such party, and each party shall retain all right, title and interest in and to its Marks.
Event Cancellation/Rescheduling. Company acknowledges and agrees that Big Top reserves the right to cancel an event scheduled as part of the Services in the sole and absolute discretion of Big Top. If an event is cancelled by Big Top (based on no fault, act, or omission of Company), Big Top will refund to Company the full value of all payments previously made by Company to Big Top in connection with the event (which shall be Company’s sole and exclusive remedy in such situation). Company further acknowledges that an event may include an outdoor venue, and that scheduling at this venue is subject to weather conditions. In the event of inclement weather at the time of an event, Big Top will use its commercially reasonable efforts to reschedule the event to an indoor location or at a mutually agreeable date and time for an outdoor venue. Company acknowledges and agrees that should rescheduling not be possible or practical depending on the circumstances, as determined by one of the parties, refund of fee payments will depend on the reasons for not rescheduling and will be at the sole and absolute discretion of Big Top.
Featured Jobs Program. If the Company elects to participate in the Featured Jobs Program (as described in attached Exhibit B – Featured Jobs Program) and the Company, it subsidiaries or affiliates hires a candidate that Big Top referred to the Company, the Company shall pay Big Top a candidate referral fee in the amount of Three Thousand Dollars ($3,000.00) (the “Referral Fee”). The candidates referred to the Company by Big Top shall be based on the skill sets required for the position as provided by the Company and the skill sets provided by the candidate. Big Top does not represent or warrant the accuracy of the information provided by the candidates. Company grants Big Top permission to bill Company’s credit card for the Referral Fee. If the credit card on file for the Company is declined or otherwise unavailable, Company shall pay Big Top the full Referral Fee upon receipt of an invoice. If a featured job is no longer active on the Big Top platform (due to cancellation, expiration, or Company’s request to remove listing) and if a Company hires a candidate referred by Big Top for the featured job or a similar position within 6 months of such referral, the Company acknowledges and agrees that it owes and shall pay Big Top the Referral Fee. If a Company does not comply with the terms contained in this Section 7, as determined by Big Top, in its sole discretion, then Big Top may (i) restrict the Services provided to the Company, (ii) restrict the Services that the Company may participate, and/or (iii) terminate the Company’s membership; in such event(s), the Company acknowledges and agrees that Big Top shall be entitled to retain any and all fees that have been paid to Big Top for the Service and the Company is not entitled to a refund.
Disclaimer of Warranty. THE SERVICES PROVIDED BY BIG TOP ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability and Disclaimer of Damages
9.1 Limitation of Liability. FOR ALL EVENTS AND CIRCUMSTANCES, BIG TOP AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT TO EXCEED THE AMOUNT THAT COMPANY PAID TO BIG TOP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY.
9.2 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL BIG TOP OR ITS AFFILIATES BE LIABLE TO COMPANY OR ITS AFFILIATES FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF BIG TOP OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification. Company shall indemnify, defend and hold harmless Big Top, its affiliates, officers, agents, advisors, managers, representatives, members, directors, stockholders, partners, and employees, from and against any claims, actions, causes of action, demands, suits or damages of any type or kind (collectively, “Claims”) arising out of or in any way connected with Company’s breach of this Agreement, actions or omission by Company, or any of its agents, employees, guests or invitees, including, without limitation, Claims for loss or damage to any property belonging to Big Top, or for death or injury to any person or persons to the extent that such Claims arise from the acts or omissions of Presenter, its officers, agents, or employees, or its guests. The indemnity obligations of Company hereunder shall survive the termination or expiration of this Agreement.
11.1 Notices. Notices must be in writing and will be deemed given when delivered by hand or five (5) days after being sent to the respective addresses indicated on the order, or to the email addresses set forth on the order, using a method that provides for positive confirmation of delivery.
11.2 Assignment. This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Big Top may assign this Agreement to its affiliate, subsidiary or pursuant to a merger or a sale of all or substantially all of such party’s assets or stock without the prior approval of Company.
11.3 Subcontracting. Big Top may subcontract Services under this Agreement without the prior approval of Company; provided, however, that (a) subcontractors must agree to keep any proprietary information received from Big Top or Company confidential, and (b) Big Top remains responsible to Company for the performance of its obligations hereunder.
11.4 Independent Contractor. Big Top is an independent contractor and nothing in this Agreement will be construed to create an employee relationship between Company (or any Company personnel) and Big Top (or any Big Top personnel). Big Top will be solely responsible for payment of applicable taxes, deductions or other payments and benefits for its personnel.
11.5 Force Majeure. Neither party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.
11.6 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
11.7 Waiver. The delay or failure of either party to exercise any rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
11.8 Complete Agreement. This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Company to place orders or otherwise effect transactions hereunder. This Agreement represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein. Any claim relating to the provision of the Services by Big Top, its affiliates and their personnel will be made against Big Top alone.
11.9 Amendment. This Agreement may not be amended, supplemented or modified except by a written instrument signed by the parties hereto, which instrument makes specific reference to this Agreement.
Selected by individual job basis
Big Top will deliver:
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Any other items mutually agreed upon in writing
Company’s sponsorship level is indicated on the Order.