Bigcommerce Pty. Ltd. (including its various affiliates and subsidiaries, "Bigcommerce") provides a collection of tools and resources to manage an online store, process orders and sell products online and related professional and other services (collectively, the “Services”). The following are the terms and conditions for use of the Services (the “Terms”), along with any amendments thereto and any operating rules or policies that may be published from time to time by Bigcommerce.
1.Services and Support
1.1 The Services are provided subject to these Terms and any operating rules or policies that Bigcommerce may publish from time to time (collectively, the "Agreement").Bigcommerce may make changes or modifications to this Agreement at any time, and such changes or modifications are effective immediately upon the earliest of (a) Bigcommerce’s email notification to you advising you of such changes or modifications, (b) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the “Last Updated” date at the top of the Terms or (c) your continued use of the Services after Bigcommerce posts the updated Agreement to bigcommerce.com. In addition, when using particular Bigcommerce services, Customer and Bigcommerce shall be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time.
1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.
1.3 The Services provides a collection of tools and resources to manage an online store, process orders and sell products online. In addition, the Services may include professional consulting services and/or migration services relating to your use of the Bigcommerce’s tools and resources.
1.4 Customer must complete a registration form in order to use the Services. Customer will provide true, accurate, current, and complete information about Customer as requested in the registration form, and will update the information to keep it current. As part of the registration process, Customer will identify an email address and password for Customer’s Bigcommerce account. Customer is responsible for maintaining the security of the Customer account, passwords, and files, and for all uses of Customer’s account and of the Services in Customer’s name. Bigcommerce reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
2.Restrictions and Responsibilities
2.1 This is an Agreement for Services, and Customer is not granted a license to any software by this Agreement. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (“Software”); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with these Terms, Bigcommerce’s privacy policies as published below or otherwise furnished to Customer (the “Policy”) and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. Customer hereby agrees to indemnify and hold harmless Bigcommerce against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Bigcommerce has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Bigcommerce may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 For every email message sent in connection with the Services, Customer acknowledges and agrees that the recipient has agreed to receive such communication and that Customer shall not engage in the act of sending unsolicited emails.
2.4 In using the varied features of the Services, Customer may provide information (such as name, contact information, or other registration information) to Bigcommerce. Bigcommerce may use this information and any technical information about Customer’s use of this website to tailor its presentations to Customer, facilitate Customer’s movement through this website, or communicate separately with Customer. Bigcommerce will not provide information to companies Customer has not authorized, and Bigcommerce will not permit the companies that get such information to sell and redistribute it without Customer’s prior consent.
3.Term and Termination
3.1 Customer may terminate this Agreement at any time. To learn more about how to terminate this Agreement, please click here. See also Section 7 entitled Fees and Payment; Upgrade, Downgrade and Cancellation of Services for more information regarding termination of this Agreement or related Services.
3.2 Bigcommerce may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Bigcommerce shall have no liability to Customer or any third party because of such termination.
3.3 Upon termination or expiration of this Agreement by either party for any reason, (a) Bigcommerce will cease providing the Services, (b) you will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise and (c) any outstanding balance owed to Bigcommerce for your usage of the Services through the effective date of such termination or expiration shall immediately become due and payable in full. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers and limitations of liability.
3.4 Upon termination or expiration of this Agreement by either party for any reason, Bigcommerce may delete any Customer archived data within 30 days after the date of termination.
4.Disputes Regarding Account or Site Ownership
4.1 The entity or person creating a Bigcommerce account and designated as the owner shall be deemed the account owner. For security reasons, only the account owner or the point of contact designated by the account owner shall be allowed to make changes, cancellations, or designate a new point of contact. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store or account. Bigcommerce is not obligated to, and will not, resolve any such disputes.
4.2 If multiple persons are claiming ownership of or rights in a site, store or account, and, in Bigcommerce’s sole judgment, there is uncertainty as to the ownership of or rights in such site, store or account, then Bigcommerce will, to the extent of its knowledge and ability, notify such persons of the dispute and demand that such persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves Bigcommerce of all liability and obligations concerning the dispute and such site, store or account. If the disputing persons fail so to resolve the dispute within what Bigcommerce, in its sole judgment, deems to be a reasonable time, then Bigcommerce, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve such dispute and reach certainty regarding ownership of or rights in such site, store and/or account. The person or persons conclusively and finally determined by court order or settlement agreement to be the rightful owner(s) or interest holder(s) of such site, store and/or account shall be obligated to pay all amounts due and comply with the then current Bigcommerce policy regarding transfers of accounts, if required, to transfer ownership of the site, store and/or account to the rightful owner. Failure of the rightful owner of such site, store and/or account to timely pay in full all of such amounts shall be deemed a breach of these Terms and shall subject the account to immediate termination.
5.Customer's Name and Trademarks; Customer Submissions
5.1 Name and Trademarks. Customer hereby grants Bigcommerce a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are provided to Bigcommerce in connection with this Agreement (a) on Bigcommerce’s own websites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing Bigcommerce’s Services and (c) in applications reasonably necessary and ancillary to the foregoing.
5.2 Customer Content. Some of the features of this website or the Services found at this website may allow Customer to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“Customer Submissions”), or (b) literary, artistic or other content, including but not limited to photos and videos (together with Customer Submissions, “Customer Content”). By providing Customer Content to Bigcommerce via any method (e.g. site submission, email, survey responses, etc.), Customer represents and warrants to Bigcommerce that (i) Customer has all necessary rights to distribute Customer Content via this website or via the Services found at this website, either because Customer is the author of the Customer Content and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses and/or permissions to use, in writing, from the copyright or other owner of the Customer Content, and (ii) Customer does not violate the rights of any third party. The provisions in this Section apply specifically to Bigcommerce’s use of Customer Content posted to Bigcommerce’s corporate websites or submitted directly to Bigcommerce. The applicable provisions are not intended to and do not have the effect of transferring any ownership or licensed rights (including intellectual property rights) Customer may have in content posted to Customer’s hosted websites. Customer shall be solely responsible for any and all of the Customer Content that is submitted through Customer’s Account, and the consequences of, and requirements for, distributing it. Bigcommerce shall own exclusive rights (including all intellectual property and other proprietary rights) to any Customer Submissions provided to Bigcommerce by any method, and shall be entitled to the unrestricted use and dissemination of any Customer Submissions provided for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
6.Export of Services or Technical Data
Customer may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
7.Fees and Payment; Upgrade, Downgrade and Cancellation of Services
7.1 Fees. In consideration of the Services provided, the Customer will pay Bigcommerce all fees due according to the prices and terms listed on the website. Bigcommerce Services are PREPAID and NON-REFUNDABLE FOR THE TERM OF SERVICES PURCHASED. UPON ANY TERMINATION BY CUSTOMER, BIGCOMMERCE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY SERVICES NOT YET PERFORMED. Bigcommerce reserves the right to modify its pricing and terms at any time, and such changes or modifications shall be posted on the website and effective immediately upon the next renewal of the services with and/or without notice to the Customer.
7.2 Taxes. All fees are exclusive of all federal, state, and/or other governmental sales, goods and services, harmonized or other taxes, fees or charges. If the Customer is a resident of Australia, the Customer is responsible for all applicable Goods and Services Taxes.
7.3 Billing Policies and Cycles. All billing invoices and payment notifications will be maintained directly in the Customer’s Account Portal. The billing cycle begins on the day the Customer converts to a paid store and is due on that day each month, partial year or year thereafter, based on the Service plan selected. Billing related to the purchase of SSL’s, Domain, and/or professional services are billed once these products/services have been purchased by the Customer.
7.4 Payment. A valid credit card is required for accounts to process payment. Bigcommerce will automatically charge the Customer’s credit card on file based on the Customer’s billing monthly, partial yearly or yearly cycle (depending on the Service plan selected) until the Customer validly terminates the Services. Bigcommerce Services are prepaid and NON-REFUNDABLE. BIGCOMMERCE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL DAYS, MONTHS OR YEARS.
7.5 Unpaid Accounts. Unpaid amounts are subject to a late payment charge of 1.5% per month. If payment is not received within 30 calendar days of the billing date, Bigcommerce will automatically revoke access to the Customer’s account. Bigcommerce may or may not contact the Customer directly to notify them of their unpaid account. Accounts past due over 90 days will automatically be deactivated.
7.6 Disputed Charges/Billing Inquiries. It is the Customer’s obligation to review all charges for accuracy. The Customer has 30 days from the date of billing to contact Bigcommerce and/or dispute the charge. Failure to do so within the specified time frame shall constitute the Customer’s agreement that all charges are valid and Customer thereby waives any claims it may have had regarding such charge.
7.7 Upgrades. Should the Customer elect to upgrade their Services, the commencement date of the next renewal period will remain the same; however, the Customer will be billed immediately for the pro-rata portion of the upgraded Service fee for the remainder of the current billing period. For example, if a month-to-month Customer is billed on October 9th for monthly services from October 9th to November 8th, and the Customer upgrades their account effective on October 30th, the Customer will be charged immediately for the pro-rata usage of the upgraded plan from October 30th to November 8th. On November 9th the Customer will be charged for the full monthly fee amount of the upgraded plan.
7.8 Downgrades. Should the Customer elect to downgrade their Services, the downgrade will take effect on the commencement of the next renewal period. In other words, Bigcommerce DOES NOT provide credits or refunds on downgrades that are effective during the applicable billing period (whether such period is a month, quarter or year). For example, if a month-to-month Customer is billed on October 9th for services from October 9th to November 8th and the Customer downgrades the Services effective on October 30th, the downgrade will take effect on the next billing date, i.e. November 9th.
7.9 Cancellations. Bigcommerce Services will continue in effect until the Customer validly terminates the Services. The Customer must notify Bigcommerce of its intent to terminate Service at least 5 calendar days prior to the billing renewal date. If notice is not received prior to such date, Services will automatically renew for the subsequent renewal period. Please click here for instruction on how to terminate Services.
For example, if a month-to-month Customer is billed on October 9th for monthly services from October 9th to November 8th and the Customer provides a valid notice to terminate their account on November 6th, the Customer will automatically be charged for Services from November 9th to December 8th and the Services will terminate on December 8th. If the same Customer provides notice to terminate their account on November 4th, then the account will terminate on November 8th and the Customer will not be charged for any further Services on such account.
8.Prohibited Practices; Copyright Infringement; Backups
8.1 Prohibited Offerings. No Customer may utilize the Services to provide, sell or offer to sell the following: replicas; controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others’ intellectual property or information; information used to illegally harm any people or animals; pornography, nudity, sexual products, programs or services; escort services or other content deemed adult related.
8.2 Profanity. Profanity, profane or otherwise inappropriate subject matter in the site content and in the domain name are prohibited.
8.3 Private Information and Images. Customers may not post or disclose any personal or private information about or images of children or any third party without the consent of such party (or a parent’s consent in the case of a minor).
8.4 Violations of Intellectual Property Rights. Any violation of any person’s or entity’s intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. Bigcommerce may remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see “Reporting Claims of Copyright Infringement” below).
8.5 Misrepresentation of Transmission Information. Forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of a message is prohibited.
8.6 Viruses and Other Destructive Activities. Use of the Services for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any Customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment) or conduct their business over the Internet.
8.7 Hacking. “Hacking” and related activities are prohibited. “Hacking” includes, but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
8.8 Anonymous Proxies. Bigcommerce does not allow the use of anonymous proxy scripts on its servers. They can be very abusive to the server resources, affecting all users on that server.
8.9 Export Control Violations. The exportation of encryption software outside of Australia and/or violations of Australian law relating to the exportation of software is prohibited. Customer may not export or transfer, directly or indirectly, any regulated product or information to anyone outside Australia without complying with all applicable statues, codes, ordnances, regulations, and rules imposed by Australian federal, state or local law, or by any other applicable law.
8.10 Child Pornography. The use of the Services to store, post, display, transmit, sell, advertise or otherwise make available child pornography is prohibited. Bigcommerce is required by law to, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
8.11 Other Illegal Activities. The use of the Services to engage in any activity that is determined by Bigcommerce, in its sole and absolute discretion, to be illegal is prohibited. Such illegal activities include, but are not limited to, storing, posting, displaying, transmitting, selling or otherwise making available ponzi or pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable online privacy laws. Bigcommerce will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
8.12 Backup Storage. Bigcommerce offers its Services to host ecommerce websites, not to store data. Using an account as an online storage space for archiving electronic files is prohibited and will result in termination of Services without prior notice. For its own operational efficiencies and purposes, Bigcommerce from time to time backs up data on its servers, but is under no obligation or duty to Customer to do so under these Terms. IT IS SOLELY CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND DATA ON BIGCOMMERCE SERVERS, AND UNDER NO CIRCUMSTANCES WILL BIGCOMMERCE BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER’S FILES AND/OR DATA ON ANY BIGCOMMERCE SERVER.
8.13 Other Activities. Engaging in any activity that, in Bigcommerce’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Bigcommerce’s business, operations, reputation, goodwill, Customers and/or Customer relations, or the ability of Bigcommerce’s Customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, the failure of Customer to cooperate with Bigcommerce in correcting or preventing violations of these Terms by, or that result from the activity of, a customer, patron, subscriber, invitee, visitor, or guest of the Customer constitutes a violation of these Terms by Customer.
8.14 A. REPORTING CLAIMS OF COPYRIGHT INFRINGEMENT.
Bigcommerce will respond to notices of copyright infringement that comply with applicable law. If a copyright holder believes that there has been a violation of his or her copyright on a website that is hosted by Bigcommerce or a Bigcommerce subsidiary, the copyright holder may request that Bigcommerce remove or disable the material by submitting written notification to our Copyright Agent (designated below). In accordance with the Digital Millennium Copyright Act (“DMCA”), the written notice must include substantially the following:
Our designated Copyright Agent to receive DMCA notices is:
Please be aware that if you knowingly make a material misrepresentation that material or activity is infringing your copyright, you may be held liable for damages under the DMCA.
B. COPYRIGHT COUNTER-NOTIFICATIONS.
If Customer believes that it has had material removed or disabled by mistake or misidentification, the Customer may file a counter-notification with Bigcommerce by submitting written notification to our copyright agent (identified above). Pursuant to the DMCA, the Counter-Notice must contain substantially all the following:
The DMCA allows Bigcommerce to restore the removed content if the party filing the original DMCA Notice does not file a court action against Customer within ten business days of receiving the copy of Customer’s Counter-Notice.
Please be aware that if you knowingly make a material misrepresentation that material or activity was removed or disabled by mistake or misidentification, you may be held liable for damages under the DMCA.
C. REPEAT INFRINGERS
It is Bigcommerce’s policy in appropriate circumstances to disable and/or terminate the accounts of Customers who repeatedly infringe copyrights.
9.1 Governing Law; Jurisdiction. The laws of the State of Texas shall govern the validity and construction of these Terms and any dispute arising out of or relating to these Terms, without regard to the principles of conflict of laws. Customer hereby consents (and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to) the jurisdiction and venue of the federal and state courts located in Travis County, Texas (USA). Customer agrees to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and is hereby expressly excluded.
9.2 WARRANTY DISCLAIMER. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. BIGCOMMERCE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BIGCOMMERCE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (A) THE ABILITY OF THE SERVICES OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE OR THE SERVICES OR SOFTWARE, (C) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (D)) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND BIGCOMMERCE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BIGCOMMERCE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (A) CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE OR (B) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE. YOU SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE, AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
9.3 LIMITATION OF LIABILITY. BIGCOMMERCE ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER’S OR ITS END USER’S USE OF THE SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, LOST REVENUE OR PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF BIGCOMMERCE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. BIGCOMMERCE SHALL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
9.4 Indemnification of Bigcommerce. You, the Customer, agree to defend, indemnify and hold Bigcommerce, its affiliates and its sponsors, partners, other co-branders and the respective directors, officers, employees and agents of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the Services, except to the extent the foregoing directly result from Bigcommerce’s own gross negligence or willful misconduct. Bigcommerce reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, the Customer.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
THE FOREGOING INDEMNIFICATION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
9.5 No Assignment by Customer. Customer may not assign this Agreement without the prior written consent of Bigcommerce, which Bigcommerce may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written consent from Bigcommerce will be deemed null and void. Bigcommerce may assign this Agreement at any time.
9.6 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.7 No agency, partnership, joint venture or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Bigcommerce in any respect whatsoever.
9.8 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
10.ADDITIONAL SERVICE SPECIFIC TERMS
In addition to the Terms above, Customer also agrees to be bound by the additional service specific terms applicable to the Services you purchase or use provided by Bigcommerce or its partners. The following Service Specific Terms are hereby incorporated by reference and are binding upon Customer.
THIRD PARTY SERVICES
Bigcommerce or its personnel may from time to time recommend or enable third party software, products or services for your consideration or use. BIGCOMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUCH SOFTWARE, PRODUCTS OR SERVICES. Your use of any such software, products or services are governed by the terms of your agreement with the provider of such software, products or services.
BIGCOMMERCE THEME STORE