Merchant User Agreement
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").
Big Cartel provides software programs ("Software") that enable merchants to build online stores through which they can sell their products and services online. 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 is effective upon Your acceptance in registration. By accepting this Agreement and subject to the terms and conditions of this Agreement, including Terms of Service for the Big Cartel Site that are incorporated herein by reference and may be accessed through links in this Agreement, Big Cartel will provide You with a limited license to use the Software and receive the Services. Please note that underlined words and phrases in this Agreement are links to pages on the Big Cartel Site, or other relevant sites. 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, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference.
You authorize Big Cartel to process any and all of Your Big Cartel account transactions initiated through the use of the password and/or passphrase that You establish through registration on the Big Cartel Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.
Notwithstanding anything contained in the foregoing, this Agreement will not bind Big Cartel unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
1. Eligibility Criteria
The Software license 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 foregoing, the Software and Services are not available to children (persons under the age of 18). 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 when You register on the Big Cartel Site. 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 or to refuse to provide the Software license and Services under this Agreement to You.
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 not expressly granted to You in this Agreement are reserved by Big Cartel.
2.2 Software License
Subject to the terms and conditions of this Agreement, Big Cartel grants to You a non-exclusive, non-transferable, revocable, limited license to 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 and maintaining an interactive store hosted by the Big Cartel Servers on which You offer Your or a third party’s products or services ("Your Store").
2.3 Software License Restrictions
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.
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 certain features of the Software, Big Cartel grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to You by Big Cartel under this Agreement ("Big Cartel Marks"), solely for display on those locations on Your Store’s web pages 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 will immediately discontinue all use and display of the Big Cartel Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the Big Cartel Marks, no licenses are granted by Big Cartel to any other trademarks, service marks, or trade names owned by Big Cartel, its parent, or affiliates.
You agree that the nature and quality of all goods and services rendered 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 thereto. You further agree that all materials bearing the Big Cartel Marks shall conform to the guidelines that Big Cartel may establish 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.
2.5 Additional Features
Certain additional features that Big Cartel may make available to You may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, Big Cartel may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions ("Additional Services"). You agree that You will not use such Additional Software or Additional Services unless You have agreed to the applicable terms and conditions, including Your payment of additional fees as required.
Upon activation of Your account and subject to the payment of applicable fees, 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 an Big Cartel’s Server on which several merchants may share the resources and network capacity.
3.2 Changes in Services
Big Cartel reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from Big Cartel in regards to the Software, Services, Your account, policy changes and system updates. 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.
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.
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 the operation of Your Store, 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 and You should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
4.2 Ownership and Control of Your Store’s Content
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 and user-generated content on and related to Your Store. As a conduit, Big Cartel will give You discretion over Your content provided 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. You retain all right, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by Big Cartel. Notwithstanding anything contained in the foregoing, if You breach any of the terms of this Agreement, Big Cartel is entitled to suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with Section 12 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 or content, Big Cartel and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the 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 therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, 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 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 with respect to the content or materials or Your Store 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.
4.4 Content License
During the period that Big Cartel provides Services to You pursuant to Section 3 of 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 and trademarks solely to host your Store, run the Software, provide You with the Services and to otherwise promote and manage the Big Cartel Site. You understand and agree that copies of Your Store may continue to be stored on Servers after You terminate Your account. Big Cartel agrees not to use Your content after You terminate Your account except as required to comply with legal requests or requirements and to 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.
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 PayPay 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. 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.
5. Covenants and Prohibitions
You covenant that any products, services, or content published and distributed on Your Store and Your related activities shall not violate the Big Cartel’s Terms of Service as it may be amended from time to time, or any of the following:
- 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 or regulation (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, 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;
- 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 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 the Big Cartel’s Server structure as determined in Big Cartel’s discretion, including without limitation overloading the 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;
- create liability for Big Cartel and 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 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 or override any restrictions on Your account or Store through use of any features of the Services or Software or otherwise.
5.2 Prohibited Activities
You agree not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Your Store:
- Blood, bodily fluids or body parts;
- Burglary tools;
- Counterfeit items;
- Illegal drugs and drug paraphernalia;
- Fireworks, destructive devices and explosives;
- Identity documents, government documents, personal financial records or personal information (in any form, including mailing lists);
- Lottery tickets, sweepstakes entries or slot machines;
- Obscene material or child pornography;
- Offensive material or hate speech;
- Police badges or uniforms;
- Prescription drugs or devices;
- Recalled items;
- Prohibited services;
- Stocks or other securities;
- Stolen property; or
- Any product or service that is illegal or marketed or sold in such a way as to create liability for Big Cartel.
You further agree not to publish, offer for sale, sell or otherwise distribute any of the following items on through or connected with Your Store, except as permitted by, and in full compliance with, all applicable federal, state, local and other 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;
- Tobacco products;
- Alcoholic products;
- Hazardous, restricted or perishable items;
- Animals, animal products, plants and seeds;
- Charitable services or goods and fundraising;
- Currency and stamps;
- Used items, such as clothing or, bedding and cosmetics;
- Adult items or pornography;
- Content or material that is infringing or otherwise violates the law, including: music; movies; e-books; games; videos; photographs and software; or
- 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.
6. Fees; Taxes; & Audit Rights
You shall pay the fees set forth on the Pricing page for the Software license and Services purchased by You. 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 through use of any features of the Services or Software or otherwise.
6.2 Payment Terms
Big Cartel will invoice You via PayPal or another electronic payment vendor and You agree to pay for non-refundable monthly subscription, in advance, including fees for the license of Software and Services to be rendered to You by or on behalf of Big Cartel in the following month.
The Service is billed in advance on a monthly basis and is 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.
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 hereunder.
7. Disclaimer of Warranties
BIG CARTEL, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, 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 SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR 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.
8. Limitation of Liability
IN NO EVENT SHALL BIG CARTEL, ITS SUPPLIERS, 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 SOFTWARE, AND ADDITIONAL SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). BIG CARTEL’, ITS SUPPLIERS’, 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 FOR THE SOFTWARE LICENSE AND THE SERVICES 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.
You agree to indemnify and hold Big Cartel, its suppliers, 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 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, or (c) any breach of this Agreement or the documents it incorporates by reference. Big Cartel’, its suppliers’ 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.
Without limiting other remedies, Big Cartel may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of 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.
12. Suspension and Termination
At the discretion of Big Cartel 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 while maintaining the information and data related to Your account upon the Big Cartel Servers. Suspension may include the disabling of 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.
This Agreement may be terminated by Big Cartel either (a) immediately if you breach any provision of this Agreement, or (b) after a period of suspension as set forth in Section 12.1 of this Agreement. You may terminate this Agreement via the Big Cartel Site or via the PayPal site or other electronic payment vendor site.
12.3 Rights Upon Termination
In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall stop using the Site, Services and Software and destroy all copies of the Software in Your possession, if any. 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. The provisions of this Agreement that by their nature are ongoing, or as explicitly provided, will survive termination or expiration of this Agreement for any reason.
13.1 Governing Law and Jurisdiction
This Agreement shall 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.
13.2 Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Store.
13.3 No Agency
You and Big Cartel are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
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.
Except as explicitly stated otherwise, any notices shall be given via email to Big Cartel, LLC at support (at) bigcartel.com or to the email address You provide to Big Cartel during the registration process (in Your case). Notice shall be deemed given twenty four (24) hours after email is sent, unless Big Cartel is notified that the email address is invalid. Alternatively, Big Cartel may give You notice by certified mail, postage prepaid and return receipt requested, to the address, if any, provided to Big Cartel during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. 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.
13.7 No Third Party Beneficiary
You acknowledge and agree that nothing herein, 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 herein or contemplated hereby.
13.8 Severability; Waiver
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall 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.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such 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 services hereunder are offered by Big Cartel, LLC.
13.12 Entire Agreement
This Agreement, together with the agreements and policies that are incorporated herein by reference, sets forth the entire understanding and agreement between You and Big Cartel with respect to the subject matter hereof.
Effective Date: December 10, 2012