Bigcommerce Pty. Ltd. ("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 policies that Bigcommerce may establish (collectively, the "Agreement"). Bigcommerce may make changes to this Agreement, and continued use of any Services constitutes Customer's acceptance of any such changes. 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 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 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 web site to tailor its presentations to Customer, facilitate Customer's movement through this web site, 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.
3.1 Customer may terminate this Agreement at any time by sending an email message to email@example.com or by sending written notice to Bigcommerce at Level 6, 1-3 Smail St, Ultimo, NSW 2007, Australia.
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 for any reason, Bigcommerce may delete any Customer archived data within 30 days after the date of termination. 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 If Customer does not log into its account for more than 90 days, the account may become inactive. When an account is classified (at Bigcommerce's sole discretion) as inactive, Bigcommerce will notify Customer by email. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SIGNUP CAMPAIGN RESULTS, MAY BE PERMANENTLY REMOVED FROM THE DATABASE.
CUSTOMER USES THE SERVICES AT ITS OWN RISK. BIGCOMMERCE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES (INCLUDING WITHOUT LIMITATION, ANY PROFESSIONAL SERVICES YOU MAY RECEIVE FROM BIGCOMMERCE). THE SERVICES ARE PROVIDED "AS IS" AND BIGCOMMERCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
5.Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY BIGCOMMERCE, BIGCOMMERCE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF BIGCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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.
7.1 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.
7.2 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.
7.3 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.
7.4 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
7.5 This Agreement shall be governed by the laws of the State of New South Wales Australia without regard to its conflict of laws provisions.
7.6 We reserve the right to modify our pricing and we will notify you by email when this occurs.
8.Payment and Renewal of Service
8.1 Term of Service. The term of Customer's subscription to the Services commences upon Customer's acceptance of these Terms and terminates as set forth above.
8.2 Payment. Customer agrees to pay all applicable fees for Services in effect at the time of registration, first use and/or renewal, subject to these Terms as same may be modified by Bigcommerce from time to time.
8.3 Automatic Renewal of Account and/or Domain. As a courtesy and not as an obligation (contractual or otherwise), fourteen (14) days prior to the expiration of Customer's hosting account, Bigcommerce will automatically renew Customer's hosting account, for the same duration initially selected, at the then-current, non-promotional rate, by charging the applicable fee to Customer's originally-selected method of payment. Likewise, as a courtesy and not as an obligation (contractual or otherwise), fourteen (14) days prior to the expiration of Customer's domain, if registered with Bigcommerce (or one of its Affiliates), or if transferred to and registered with Bigcommerce (or one of its Affiliates), Bigcommerce will automatically renew Customer's domain, for the same duration initially selected, at the then-current, non-promotional rate, by charging the applicable fee to Customer's originally-selected method of payment. Customer acknowledges and confirms that the obligation to renew her/his/its account or domain is solely and exclusively the responsibility of the Customer, and is not the obligation (contractual or otherwise) of Bigcommerce. While consenting to Bigcommerce's performance of said courtesy, Customer hereby releases Bigcommerce from all liability for its failure for any reason to renew said account or said domain. Customer acknowledges that there may be many reasons why Bigcommerce is unable to renew said account or domain, including but not limited to inability of Bigcommerce, for any reason, to bill said renewal to Customer's credit card, to contact or otherwise get response from Customer at last known email address, or otherwise. Customer acknowledges that said account and/or domain, if not renewed, for whatever reason, will expire on the account or domain expiration date, as applicable.
8.4 Cancellation of Automatic Renewal of Account or Domain. To cancel Automatic Account Renewal or Automatic Domain Renewal, Customer must notify Bigcommerce of Customer's intent to cancel at least sixteen (16) days prior to the account or domain expiration date, by directing Automatic Account Renewal Cancellation Notification and/or Automatic Domain Renewal Cancellation Notification to Bigcommerce, as applicable, by sending same via email to firstname.lastname@example.org. Bigcommerce agrees that on receipt of Automatic Account Renewal Cancellation Notification and/or Automatic Domain Renewal Cancellation Notification under the conditions stated above, no additional charges will be billed to Customer, and Customer's hosting account and/or domain, as applicable, shall expire on the account expiration date.
8.5 Cancellations and Refunds. Bigcommerce does not provide a money back guarantee for new account registrations under any circumstances.
8.6 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.
8.7 Profanity. Profanity or profane subject matter in the site content and in the domain name are prohibited.
8.8 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 said party (or a parent's consent in the case of a minor).
8.9 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 is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Copyright Infringement Notice Information" below).
8.10 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.
8.11 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.
8.12 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.
8.13 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.
8.14 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.
8.15 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.
8.16 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.
8.17 Backup Storage. Bigcommerce offers its Services to host ecommerce web sites, 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.
8.18 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.
8.19 COPYRIGHT NOTICE INFRINGEMENT INFORMATION. In accordance with the Digital Millennium Copyright Act, Bigcommerce has adopted a policy that provides for termination of websites hosted by Bigcommerce that are found to infringe on copyrights of third parties. 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 an Bigcommerce subsidiary, and the copyright holder wants Bigcommerce to remove the website or disable the material in question, Bigcommerce will remove the website or disable the material if the copyright holder provides us with all of the following information.
A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
8.20 Backups. 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.
8.21 Governing Law. These Terms shall be governed by the laws of the State of New South Wales without reference to conflict of law principles. The United Nations Convention on the International Sale of Goods shall not apply and is hereby expressly excluded. By subscribing to or using any of the Services of Bigcommerce, Customer agrees that all disputes, if any, involving Bigcommerce shall be subject exclusively to the jurisdiction of the State and Federal Courts within the State of New South Wales; provided, further, that all action brought against Bigcommerce in State Court must be brought in New South Wales, Australia. Customer hereby agrees that it is subject to the in personam jurisdiction of said courts for all purposes in connection with these Terms and/or in connection with any claim or dispute involving Bigcommerce. Customer hereby waives any and all objections that it has or might have, known or unknown, whether under New South Wales long arm statute or otherwise, to the existence of said in personam jurisdiction. Customer agrees that it has no right to and shall not file or otherwise bring a lawsuit against Bigcommerce outside the State of New South Wales; and, that Customer, if involved before a court in a lawsuit outside of the State of New South Wales, shall be deemed to support and to stipulate to a motion made by Bigcommerce to dismiss said lawsuit with respect to Bigcommerce.
8.22 WARRANTY DISCLAIMER. YOU, THE CUSTOMER, ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED "AS IS, AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND. BIGCOMMERCE HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY BIGCOMMERCE OR BIGCOMMERCE'S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, CUSTOMER SUPPORT REPRESENTATIVES OR PROFESSIONAL CONSULTANTS, SHALL CREATE A WARRANTY. BIGCOMMERCE DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. BIGCOMMERCE DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. BIGCOMMERCE DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICES OF BIGCOMMERCE IN PARTICULAR.
8.23 LIMITATIONS ON BIGCOMMERCE'S LIABILITY. BIGCOMMERCE SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL BIGCOMMERCE BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT BIGCOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. BIGCOMMERCE SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. BIGCOMMERCE'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF CUSTOMER'S ACCOUNT AS SET FORTH HEREIN. IN NO EVENT SHALL BIGCOMMERCE'S LIABILITY TO YOU, THE CUSTOMER, EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE CUSTOMER, TO BIGCOMMERCE FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE CUSTOMER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION . SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, BIGCOMMERCE'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.24 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 and employees 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.