Effective Date: June 2, 2016
This Merchant User Agreement (“Agreement”) is between you, the user, together with any company or other business entity you are representing, if any (collectively, “You”), and Big Cartel, LLC (“Big Cartel”) - providers of the Big Cartel website located at bigcartel.com (“Big Cartel Site”), as well as related applications and services.
Big Cartel provides software programs that enable merchants to build online stores through which they can sell their products and services online (“Software”), including software applications (“Apps”). Big Cartel also provides merchants services, including hosting of the online store, email services, marketing services, and other related services as may be offered from time to time (collectively, “Services”).
This Agreement begins when You accept it (either in registration or if you take over an account of someone else, in accordance with the transfer terms provided in Section 13.6 below), and stays in effect until You or Big Cartel terminate Your account. This Agreement is subject to Terms of Service for the Big Cartel Site that are incorporated into this Agreement by reference and may be accessed through links in this Agreement and on www.bigcartel.com. In the event any terms provided in this Agreement conflict with the Terms of Service, the terms provided in this Agreement will govern.
By accepting this Agreement and by using the Software and Services, You agree to be bound by the terms and conditions of this Agreement, and to all terms and conditions that are incorporated into this Agreement by reference. We may change the terms and conditions of this Agreement, and if you continue using the Software and Services after such changes you will also be bound by those amended terms and conditions.
You authorize Big Cartel to process any and all of Your Big Cartel account transactions initiated through the use of the password or passphrase that You establish through the Big Cartel Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.
Big Cartel is not bound by this Agreement unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
The “Recap” sections are provided to summarize parts of the Agreement. These “recaps” are not part of the Agreement. Please read the language of the Agreement as that is what is binding.
1. Eligibility Criteria
Big Cartel’s Software and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the last sentence, the Software and Services are available to people between the age of 13 and 17 on the condition a parent or legal guardian consents and agrees to be bound for such person. Use this link to provide evidence of consent from a parent or legal guardian. If You are registering as a business entity, You represent that You have the authority to bind such entity to this Agreement. Big Cartel may use techniques to confirm the accuracy of the information You provide to us. If for any reason, Big Cartel, in its discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement, terminate Your account, and refuse to provide the Software and Services under this Agreement to You. You further represent that You have not had a prior account terminated by Big Cartel or been associated with a Big Cartel account that was previously terminated.
In order to use Big Cartel, you need to be able and authorized to enter into a legally binding agreement. Usually that means you need to be an adult, 18 years or older, but not this time! If you’re between 13 and 17 years of age, you can still use Big Cartel’s services! You just need evidence of your parent or guardian’s consent. There’s a parental consent form they can fill out here.
We may take steps to verify any information you provide to us, and we may revoke your account and ability to use Big Cartel if we believe you gave us inaccurate information.
And don’t try to register for a new account if we’ve previously terminated your account. If you break the rules and your account is terminated, then you can’t use our services.
2. Big Cartel Software and Trademark Ownership and Licenses
2.1 Software Ownership
You acknowledge and agree that, as between You and Big Cartel, all Software and any other content provided by Big Cartel, and all worldwide intellectual property rights therein, are the exclusive property of Big Cartel. All rights in and to the Software and Services not expressly granted to You in this Agreement are reserved by Big Cartel.
We own all intellectual property rights to all software, apps, services, and any other content we provide. If we provide it, it belongs to us.
2.2 Access and License
Subject to the terms and conditions of this Agreement, Big Cartel grants to You a non-exclusive, non-transferable, revocable, limited license to (a) remotely access and use the Software on servers operated by or for Big Cartel (“Big Cartel Servers”) through the Big Cartel Site solely for the purpose of building, maintaining, and operating an interactive store hosted by the Big Cartel Servers on which You offer products or services (“Your Store”), and (b) download an App to a compatible mobile device solely to process transactions for Your Store. You may modify code that we make available to You for the purpose of customizing features in Your Store.
A limited license is one that lets you do only certain things. Anything other than what is specified is a no-no. So, we grant you a conditional and limited license to do two things: (1) access and use the platform to create and operate your store; and (2) download an app to process transactions for your store on a mobile device. We also let you customize some features.
You acknowledge that the Software and its structure, organization, and source code constitute valuable intellectual property of Big Cartel. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software, or (d) transfer Your interest in and to Your Store to any third party.
We own all our software - simple, right? You’re allowed to use our software in the ways described in Section 2.2. above, but those allowances aside, you can’t use, modify, distribute, or reverse engineer them. You also can’t transfer your store to any third party unless you let us know ahead of time and we agree in writing.
Some Apps are only available for certain mobile devices. Big Cartel may update and change which devices are available from time to time. An App may not be compatible with Your mobile device. No mobile device is compatible if it has been modified from the manufacturer’s software or hardware guidelines, including any disabling of controls, “jail breaking” the device or adding malware. Use of such a modified mobile device with an App or the Services is expressly prohibited and is grounds for termination of this Agreement, Your use of the Software, Services, and Your Store.
Our apps won’t be compatible with all devices, and you’re not allowed to use them with “jail broken” devices.
With all Apps, You are responsible for the following:
- Determining compatibility with Your mobile device;
- Understanding whether the terms of Your agreement with Your mobile device manufacturer and mobile service carrier apply to Your use of the App; and
- Controlling access to and use of Your mobile device to prevent the bypassing, disabling, or overriding of any restrictions, security measures, or other limitations of an App or Your device and to prevent malware or other malicious code from being introduced to Your mobile device.
You’re responsible for determining whether or not our app will work with your device. It’s up to you to understand if any agreements affecting your mobile device may also affect your use of our app. Safeguarding your mobile device is your responsibility.
2.4 Big Cartel Trademark Ownership, License and Restrictions
Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for the Software and Services, or parts of them, Big Cartel grants to You a non-exclusive, non-transferable, revocable license (without the right to grant sublicenses) to display those trademarks that Big Cartel provides to You under this Agreement (“Big Cartel Marks”), solely for display on those locations on Your Store’s web pages or on promotional materials for Your Store or in connection with an App as designated by Big Cartel in its sole discretion, and that Big Cartel may periodically change from time to time. Big Cartel grants no rights in the Big Cartel Marks other than those expressly granted in this Section 2.4. You acknowledge Big Cartel’s exclusive ownership of the Big Cartel Marks and that all use of Big Cartel Marks inures to Big Cartel benefit. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Big Cartel Marks or in such a way as to create combination marks with the Big Cartel Marks. At Big Cartel’s request (in its discretion), You agree to immediately discontinue all use and display of the Big Cartel Marks. You acknowledge and agree that, except with respect to the trademark license granted in this Agreement, no licenses are granted by Big Cartel to any other trademarks, service marks, or trade names owned by Big Cartel, or its affiliates.
We grant you a conditional and limited license to display certain Big Cartel trademarks in your store and through the app. Want to let the world know you’re using Big Cartel? We couldn’t be happier. BUT, display our marks within our rules - don’t try to pass them off as your own, don’t combine them with other marks, and stop using them if we ask you to. And follow our brand guide. You don’t have any other rights to our trademarks. We own those trademarks and you agree not to challenge or interfere with our trademark rights.
You agree that the nature and quality of all goods and services that You provide in connection with the Big Cartel Marks and all related advertising, promotional and other uses of the Big Cartel Marks by You shall be of a high standard so as to protect and enhance the Big Cartel Marks and the goodwill pertaining to such marks. You further agree that all materials bearing the Big Cartel Marks shall conform to Big Cartel’s guidelines, which Big Cartel may change from time to time, and that You shall obtain Big Cartel’s approval prior to using the Big Cartel Marks in any manner that is inconsistent with Big Cartel’s guidelines.
Any use of our marks must be in keeping with our guidelines, and they may only be used in association with quality goods and services. If you want to use our marks in a way not covered or allowed by our guidelines, ask us!
2.5 Additional Features
Big Cartel may make certain features, software, services, and programs available to You for use with or in connection with the Software and Services (“Additional Services”). Additional Services may be provided by third parties and may be subject to additional or independent terms and conditions. Big Cartel is not responsible for any Additional Services provided by third parties. You agree that You will not use such Additional Services unless You have agreed to the applicable terms and conditions, including Your payment of additional fees as required.
We may make other apps, programs, and features available to you along the way. These may be owned by people and companies other than Big Cartel, and may be subject to different terms. If you choose to use them, you agree to comply with all terms required by the folks providing these programs and features, and to pay any required fees.
Upon activation of Your account and subject to the payment of applicable fees and your compliance with this Agreement, Big Cartel will provide You during the term of this Agreement with the hosting, support and other miscellaneous Services as provided on the pricing page of the Big Cartel Site and for the Software licensed to You under this Agreement. Your Store will be hosted on Big Cartel Servers on which several merchants may share the resources and network capacity.
As soon as you create an account, pay any required fees, and agree to this Merchant User Agreement, we’ll provide you with the level of hosting, support, and other services described on our pricing page - and we’ll continue to do so until you or we terminate your account. Also, your store will be hosted on servers shared with other merchants’ stores. No one gets a whole server all to them self - that’d just be a waste of resources!
3.2 Changes in Services
Big Cartel reserves the right to change, amend, and otherwise alter the Services without prior notice to You. You agree to receive administrative communications from Big Cartel with regard to the Software and Services, Your account, policy changes, system updates, and other notices. If You do not agree to such changes, then You may terminate use of the Services. Big Cartel will not refund any fees or payments in the event of such termination.
We may change the products and services we provide at any time and without notice. You agree that we can email and correspond with you regarding these changes, or for other reasons related to your use of our products and services. If you don’t agree with the changes we’ve made, you’re free to stop using our products and services, but we won’t issue a refund.
3.3 Service Downgrades
Downgrading your Service may cause the loss of content, features, or capacity of Your account. Big Cartel does not accept any liability for such loss.
It’s up to you to be aware of what content, features, or capacity you may lose as a result of downgrading your service plan, and to back-up any materials you don’t want permanently lost.
4. Your Store & Content Control
4.1 Control of Your Store
You will be solely responsible for the development, promotion, back-up, operation, and maintenance of Your Store, including accepting, processing, and filling customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that Big Cartel has no obligation to back-up any data related to Your Store’s operations, that you will not have access to such data if your account is terminated and You should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
You’re the only person responsible for operating, maintaining, and backing up your store, as well as for backing up all the data related to it. If your account is terminated, all of your store’s data will be deleted permanently and cannot be recovered.
4.2 Ownership and Control of Your Store’s Content
You retain all right, title, and interest in and to all intellectual property rights in Your content, exclusive of any content provided by Big Cartel. You will be solely responsible for creating, managing, editing, reviewing, deleting, and otherwise controlling the content on Your Store, including all descriptions of the products and services You offer to customers of Your Store, trademarks You use, and user-generated content on and related to Your Store. As a conduit, Big Cartel will give You discretion over Your content on the condition it is compatible and interoperable with the Software and Services provided by Big Cartel under this Agreement and Your content and use of the Services, Software, and Big Cartel Site comply with all applicable laws and the terms of this Agreement. Regardless of other language in this Section, if Big Cartel has reason to believe that You have breached any of the terms of this Agreement, Big Cartel may suspend or terminate Your Store and/or any access to information or data related to Your account and the Software and Services, and disable and delete any content on Your Store.
You own your content, but that doesn’t include anything we provide (as established in section 2.1 above).
Again, you’re the ONLY person responsible for your store and its content. We are giving you full control over what you include in your store, but it must comply with this agreement and all laws that apply to operating an online store, and it must work within our system.
We may suspend or terminate your store or remove any content from your store if we believe you’ve breached any terms of this agreement.
4.3 Passive Conduit
You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services, and content, Big Cartel and its Software and Services are acting only as passive conduits for the distribution and publishing of such products, services, and content on Your Store. Big Cartel has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed on Your Store or any other content published and distributed on or through Your Store. Regardless of anything else in this Agreement, if Big Cartel believes in its discretion that Your Store or any products, services, content, or other materials in the Store or on Big Cartel Servers, or Your use of any Software, App, or Service, may create liability for Big Cartel or harm other users of Big Cartel’s websites or services, then You agree that Big Cartel may take any actions that Big Cartel believes are prudent or necessary to minimize or eliminate Big Cartel’s potential liability or to protect other users of Big Cartel’s websites or services, including terminating Your account or denying You Service.
We’re only providing you with a platform for your store. We have no responsibility to review your store, products, or content.
But, if we believe that you, your store, or your products may harm us or others in any way, we may do whatever we think is necessary to minimize or eliminate that risk.
4.4 Content License
During the period that Big Cartel provides Services to You pursuant to this Agreement, You hereby grant to Big Cartel and its subcontractors, and vendors a non-exclusive, irrevocable, sublicenseable, royalty-free, transferable, worldwide license to reproduce, use, distribute, create derivative works of, alter, modify, resize, crop, watermark, reformat, resave, compress, decompress, rewrite, cache, strip metadata, transmit, publicly perform, publicly display, and digitally perform Your content, data, and trademarks solely to host Your Store, run the Software and Apps, provide the Services and to otherwise promote and manage the Big Cartel Site. By making Your Store public, You agree that others can view Your content. You understand and agree that copies of Your Store, or parts of Your Store, may continue to be stored on Big Cartel Servers after You terminate Your account. Big Cartel agrees not to use Your content, data, and trademarks after Your account is terminated except as required to comply with legal requests or requirements, investigate claims, defend itself, and maintain records. You acknowledge and agree that Big Cartel, its subcontractors, and vendors may use Your content for beta testing purposes even if such beta tests do not have a positive impact on performance.
You grant us, our subcontractors, and our vendors a license to use your content and trademarks to host your store, provide the services, and to promote and manage our site. Just like you get to tell the world you’re using Big Cartel, we get to tell the world you’re using us too!
We’ll of course stop using your content and trademarks after your account is terminated, except when needed for legal purposes, like to investigate claims, defend ourselves, and maintain records.
We may keep a copy of your store, or parts of your store, on our servers even after your account is terminated, but we’re not obligated to do so, and this should not be relied on as an avenue for recovering information. Remember, you’re the ONLY person responsible for backing up your store, and you won’t have access to it after your account is terminated.
4.5 Order Fulfillment
Big Cartel may make certain order fulfillment services, such as payment verification and processing, available to You. Some of these services may be available through third party vendors, such as PayPal and Stripe, and Your relationship with such vendor will be pursuant to a separate agreement between You and the applicable vendor. You understand and agree that Big Cartel is not responsible for the availability or provision of such services or for such third party vendor’s non-performance or breaches of its agreement. Big Cartel does not guarantee the availability, security, or delivery of such services or that You will be eligible for any vendor’s services. It is Your responsibility to address all issues with regard to a vendor, including payments, refunds, chargebacks, collections, and service outages, with such third party vendor. It is also Your responsibility, and You agree to comply with all applicable agreements you have with such vendors, as well as all laws and industry guidelines regarding payment and orders that apply to merchants, including laws with regard to taxes, privacy, and PCI guidelines.
We currently offer order fulfillment services through PayPal and Stripe, though we may offer other vendors for these and other services in the future. You must agree to, and abide by, the terms and conditions of these vendors.
We can’t guarantee any part of these third party services and we’re not responsible if you have problems with the vendors. If an issue comes up on the vendor’s end, it’s up to you and the vendor to resolve it.
You agree to comply with all applicable laws and guidelines regarding payments and orders - which includes laws regarding taxes, privacy, and PCI guidelines.
4.6 Claims Against Your Store
We handle third party claims against Your Store in accordance with our Copyright and Trademark Policy, which is incorporated into this Agreement by reference, and which you agree to.
We’ve explained how we handle infringement and similar claims in our Copyright and Trademark Policy, so definitely go give that a read.
5. Covenants and Prohibitions
You covenant that all products, services, and content offered, published, or distributed on or through Your Store and Your related activities, including use of the Software and Services will not violate the Big Cartel’s Terms of Service as it may be amended from time to time, and will not:
- be false, inaccurate, or misleading;
- be fraudulent or involve the sale of counterfeit, stolen, or infringing items;
- infringe or misappropriate any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy;
- violate any law, statute, ordinance, regulation, or industry guideline (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, data security standards, unfair competition, antidiscrimination, criminal activities, or false advertising);
- be defamatory, libelous, offensive, unlawfully threatening, or harassing, or advocating, promoting, or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- be obscene or contain child pornography;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information, or disable any system, software, or hardware that is intended to encrypt, obscure, or protect data or personal information;
- involve the transmission of any unsolicited commercial or bulk email (known as “spamming”) and You shall not use Your account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid, ponzi schemes or the like;
- involve the collection, sale, storage, or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
- be harmful or potentially harmful to Big Cartel Servers or systems as determined in Big Cartel’s discretion, including without limitation overloading Big Cartel’s technical infrastructure;
- involve subleasing Your account or offering “free space” on or other access to Your account or Your Store to third parties;
- involve selling Your account other than as part of a sale of your business and with our prior written consent;
- create liability for Big Cartel, its vendors or its subcontractors or expose them to undue risk or otherwise engage in activities that Big Cartel, in its sole discretion, determines to be harmful to Big Cartel, its vendors, affiliates, operations, reputation, or goodwill;
- link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance, or regulation, or that violate this Agreement; and
- not to bypass, disable or override any restrictions, security measures, or other limitations on Your account, Your Store, the Services or Software.
You promise your store and the goods and services you offer will comply with our Terms of Service.
You also promise not to use the services to do bad things. Don’t use Big Cartel’s service to harm us or anyone else. Follow laws and industry guidelines. Just be good.
5.2 Prohibited and Restricted Activities
Prohibited Products & Services
You agree not to publish, offer for sale, sell, or otherwise distribute any of the following items on, through or connected with Your Store or through any App:
- Blood, bodily fluids, antibodies, body parts, and items derived from such things;
- Burglary tools and surveillance equipment;
- Counterfeit items;
- Content or material that is infringing or otherwise violates rights of publicity, privacy or proprietary rights, including: music; movies; e-books; games; videos; photographs and software that you do not own or have permission to use;
- Illegal drugs and drug paraphernalia and substances designed to mimic illegal drugs;
- Tobacco products;
- E-cigarettes and smokeless tobacco products;
- Fireworks, destructive devices, explosives, and hazardous materials;
- Identity documents, government documents, personal financial records, or personal information (in any form, including mailing lists);
- Lottery tickets, raffle, opportunity drawing and sweepstakes entries, slot machines, or similar gambling devices and products;
- Obscene material;
- Child pornography;
- Offensive material;
- Hate speech;
- Unwashed clothing and bedding and previously used cosmetics; see restricted items for washed used clothing and bedding and unused cosmetics;
- Police badges or uniforms;
- Prescription drugs, steroids, items containing pseudoephedrine, and medical devices;
- Chemicals, serums, toxins, and similar items;
- Pets, animals, and wildlife products;
- Recalled items;
- Products and services that violate any law, statute, ordinance, regulation, or third party prohibition;
- Stocks or other securities;
- Code or similar automatic items, programs, or processes, such as automated software, data mining software, scrapers, and ‘bots;
- Online and social media activity, such as selling likes, views, followers, and subscriptions;
- Weapons and other related items, including, without limitation, firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives, and martial arts weapons;
- Stolen property, including digital and virtual goods; or
- Any product or service that is illegal, violates the rights of others or is marketed or sold in such a way as to create liability for Big Cartel.
This is a list of what you can’t use your store for.
You may publish, offer for sale, sell, or otherwise distribute the following items on, through or connected with Your Store, but only if applicable federal, state, local, and other laws permit you to do so, and you fully comply with such laws:
- Digital files that You do not own or have all necessary rights or license to store, display, perform, copy and distribute;
- Event tickets;
- Food items;
- Hazardous, restricted, or perishable items;
- Animals, animal products, plants, and seeds;
- Charitable services or goods, and fundraising;
- Currency and stamps, but sales of virtual currency are prohibited other than by the operator of the virtual world;
- Used items, such as washed clothing and bedding, and unused cosmetics; or
- Adult items or pornography.
This is a list of things that are complicated to sell because of the laws and regulations related to them. You can use your store for these things, but only if you’ve taken the time to understand all of the relevant laws and regulations and you comply with them.
You must obtain our prior authorization to publish, offer for sale, sell, or otherwise distribute alcoholic products on, through, or connected with Your Store.
In addition, Big Cartel reserves the right to prohibit the use of the Services for any purpose that it deems objectionable or that poses elevated risks.
6. Fees; Taxes; & Audit Rights
You shall pay the fees set forth on the Pricing page for the plan you choose. Big Cartel may change the fees for its Services from time to time. If You do not accept a change in the fees, then You may terminate Your account. You agree not to disguise, hide, or otherwise misrepresent the number of products that You offer on or through Your Store, or through use of any features of the Services, Software, App or otherwise.
Fees are listed on the Pricing page. You agree to pay for the level of service you choose to use. We may change the fees periodically, and you’re welcome to terminate your account if you’re not happy with those changes. You also agree not to misrepresent the quantity of products sold on or through your store.
6.2 Payment Terms
You agree to pay, via PayPal or another electronic payment vendor, for the Services, Software, and App in advance on a monthly basis. You understand that all fees are non-refundable. There will be no refunds or credits for partial months of service, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
Upon non-payment Big Cartel in its discretion may re-attempt to collect the amount due up to 3 times before suspending or terminating Your account or immediately suspend or terminate Your account.
We’ll bill you in advance on a monthly basis for the services and there will be no refunds. If you don’t pay, we’ll have to suspend or terminate your account.
All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Big Cartel’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services under this Agreement.
You are solely responsible for collecting and reporting taxes on goods and services you offer on, through, or connected with Your Store.
The fees you pay us do not include taxes, which you are responsible to pay.
You’re responsible for collecting and paying any taxes related to sales on or through your store.
7. Disclaimer of Warranties
Big Cartel, its vendors, and service providers, provide the Software, Services, and Additional Services, on an “as is” and “as available” basis and expressly disclaim any and all express, implied, or statutory warranties, including the warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement, and warranties arising from a course of dealing, usage, or trade practice. Big Cartel, its vendors, and service providers, do not warrant that the software, apps, services, and additional services will be error-free or uninterrupted and make no representations regarding uptime, use, data security, accuracy, and reliability of the Software, Services, and Additional Services. You acknowledge and agree that this Section 7 is reasonable and an essential element of this Agreement and that in its absence, the economic terms of this Agreement would be substantially different.
These software, apps, and services are provided on an “as is” and “as available” basis. You use our software, apps, and services at your own risk and we don’t make any promises about them.
8. Limitation of Liability
In no event shall Big Cartel, its vendors, or service providers, or their officers, members, directors, employees, contractors, or agents be liable for lost profits or any special, indirect, punitive, incidental, or consequential damages arising out of or in connection with the Software, Services, any Additional Services, or this Agreement (however arising, including negligence). Big Cartel’s, its vendors’, and service providers’, cumulative liability, and the liability of their officers, members, directors, employees, contractors, and agents to you or any third parties in any circumstance is limited to the amount of fees you paid to Big Cartel in the one (1) year immediately preceding the month in which the action giving rise to the liability first arose. Some states do not allow the exclusion or limitation of certain damages, so the above limitation or exclusion may not apply to You.
If you experience a loss because of the Big Cartel service, then Big Cartel, the people associated with us, and our vendors will only be responsible for direct damages up to the amount you paid in the year prior to when the problem arose. We, the people associated with us, and our vendors are not liable for any other types of damages.
You agree to indemnify and hold Big Cartel, its vendors, and service providers, and their officers, members, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (a) any content and other materials provided, stored, sold, or otherwise distributed by You or generated by users of Your Store, (b) any claims arising from the sale or license of goods or services in Your Store, and (c) any breach by You or those You control of this Agreement or the documents it incorporates by reference. Big Cartel’s, its vendors’, and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by Big Cartel. Big Cartel reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Big Cartel’s defense of such claim.
You agree that Big Cartel and the people associated with us and our vendors aren’t liable for your actions or activities. You’re responsible for your own actions and activities and agree to pay for any resulting damages or expenses, including reimbursing us for any amounts we have to pay because of you. We have the right to control the defense of any claim made against us because of you and you’ll pay for that defense.
Without limiting other remedies, Big Cartel may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend, lock, or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Software or Services to You if: (a) You fail to pay any fees in accordance with this Agreement; (b) You breach this Agreement or the documents it incorporates by reference in any other manner; (c) Big Cartel is unable to verify or authenticate any information You provide to Big Cartel; or (d) Big Cartel believes that Your actions may harm, cause financial loss or legal liability for You, Your Store customers, Big Cartel, or Big Cartel’s users or affiliates.
We may suspend or terminate your account or part of your store if you breach this agreement or do anything that we believe may harm us or others.
12. Suspension and Termination
At Big Cartel’s discretion, Big Cartel may suspend Your account or any part of Your account by deactivating any access by You or by Your customers to any information contained on the Big Cartel Servers related to Your account, and by suspending Your use of an App. Suspension may also include disabling Your Store and/or any access to information or data related to Your account. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.
We’re able to suspend all or part of your account and/or disable all or part of you store. You’re still responsible for paying any fees due while your account or store is disabled.
You and Big Cartel may terminate this Agreement and Your account at any time.
12.3 Rights Upon Termination
In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement will automatically and immediately cease and You shall stop using the Big Cartel Site, Services, and Software, destroy all copies of the Software in Your possession, if any, and remove all Apps from Your mobile devices. You will not have access to Your account after termination. Upon termination, there will be no refund provided to You except as otherwise agreed to in writing by Big Cartel and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Big Cartel to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs, and/or attorneys’ fees or expert witnesses’ cost or other costs of any kind under this Agreement.
At termination you have to stop using our services, software, and apps. You won’t have access to your account after termination, so don’t forget to backup your info.
We don’t refund any payments upon termination, and we may collect any fees, damages, or other payments you owe us.
13.1 Governing Law and Jurisdiction
This Agreement will be governed in all respects by the laws of the State of Utah without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. You agree that any cause of action that may arise under this Agreement or in connection with Your use of the Software or Services will be commenced and heard only in the appropriate court having jurisdiction over Salt Lake City, Utah. You hereby consent to the exclusive jurisdiction of and venue in such courts.
If you and Big Cartel ever have a dispute it will be decided by a court in Salt Lake City, Utah, and Utah law will apply.
13.2 Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding Your use of the Software and Services and Your listing and sale of products and services on Your Store.
You’ll comply with all laws and regulations regarding the software, services, and everything else you do with your store.
13.3 No Agency
You and Big Cartel are independent contractors, and this Agreement is not intended to create, and does not create any agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship.
Your relationship to us is that of independent contractors. We aren’t, among other things, your employer or partner.
13.4 Force Majeure
Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorist act, governmental act or order, act of God, failures in electric power or telecommunications services, or any other event beyond the control of the party.
If you or we are delayed in doing something we are supposed to because of crazy or uncontrollable circumstances, it won’t count as a breach of the agreement. This doesn’t excuse your obligation to pay fees when they’re due, though.
Except as explicitly stated otherwise, any notices will be provided via email to Big Cartel, LLC at email@example.com and to the email address or addresses You provide to Big Cartel (in Your case). Notice will be deemed given twenty-four (24) business hours after email is sent. Alternatively, Big Cartel or You may send notice by certified mail, postage prepaid and return receipt requested. If certified mail is used, notice will be deemed given three (3) days after the date of mailing.
We may contact each other by email, and any notices are assumed delivered 24 business hours after an email is sent. We may also send notice by certified mail, and those notices are assumed delivered 3 days after mailing.
You shall not assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement without our prior written consent. Any assignment, transfer, or delegation in contravention of the foregoing provision will be null and void. You agree that this Agreement may be assigned by Big Cartel, in Big Cartel’s discretion without Your consent. This agreement is binding on your permitted assignees and transferees.
You can’t transfer your store or this agreement to someone else unless you first let us know and we agree. We can transfer this agreement and related responsibilities as we see fit.
13.7 No Third Party Beneficiary
You acknowledge and agree that nothing in this Agreement, express or implied, is intended to or will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies, or other benefits with respect to or in connection with any agreement or provision contained in or contemplated by this Agreement.
This agreement is between only you and us.
13.8 Severability; Waiver
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Big Cartel’s failure to act with respect to a breach by You or others does not waive Big Cartel’s right to act with respect to subsequent or similar breaches.
If part of this agreement is found unenforceable it won’t affect the other parts of the agreement. Our failure to enforce a term of this agreement won’t prevent us from enforcing that term at a later date or enforcing any other term.
Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section. When used in this Agreement, the term “including” means “including but not limited to,” and “discretion” means the sole discretion of the applicable party unless expressly stated to the contrary.
The headings in the agreement are only to be used for reference. The terms “including” and “discretion” are also defined in this section.
The sections listed here and definitions and terms that are ongoing will remain in effect even after termination of this agreement.
13.11 Entire Agreement
This Agreement, together with the agreements and policies that are incorporated into this Agreement by reference, sets forth the entire understanding and agreement between You and Big Cartel with respect to the subject matter of this Agreement.
Everything you need to know about your agreement with us is right here. The agreement, which includes the other referenced policies and agreements, includes everything you and Big Cartel have agreed to.