***THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION***
BiG makes any BiG-operated website that links to this Agreement (collectively, the “Platform”) available for your use subject to the terms and conditions in this Agreement. Please note that different or additional terms may apply to specific services or features offered on the Platform or specific uses of the Platform (“Specific Agreements”), including the platform services agreement between you and BiG.
1. Revisions to this Agreement
We may revise and update this Agreement from time to time and will post the updated Agreement to the Platform. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Platform will constitute your agreement to any new provisions within the revised Agreement.
2. Your License to Access the Platform
All written content prepared and posted by BiG and the Platform design, layout, look, appearance, and graphics on the Platform, as well as the trademarks, service marks, and logos contained on the Platform (“BiG Content”)are owned by or licensed to BiG and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. BiG reserves all rights not expressly granted in, and to, the Platform and the BiG Content.
Except as otherwise provided in this Agreement, no part of the Platform and no BiG Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent.
On the condition that you comply with all your obligations under this Agreement, BiG grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Platform. Any use of the Platform in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Platform.
Your access to the Platform is provided on a temporary basis with no guarantee for future availability. Except to the extent provided in a Specific Agreement, we reserve the right to withdraw or modify any content or services we provide on the Platform without notice.
3. Restrictions on Your Use of the Platform
You agree that when using the Platform, you will not:
- Delete, modify, or attempt to change or alter any of the BiG Content or notices on the Platform;
- Introduce into the Platform any virus, rogue program, time bomb, drop dead device, ransomware, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Platform or to otherwise harm other users, BiG Content, or any third parties, or perform any such actions;
- Use the Platform to commit fraud or conduct other unlawful activities;
- Access or attempt to access any other person’s account, personal information, or content without permission;
- Copy, modify, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Platform is based;
- Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Platform for any reason;
- Use any BiG Content made available through the Platform in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Platform;
- Connect to or access any BiG computer system or network without authorization; or
- Use the information in the Platform to create or sell a similar service.
BiG may suspend or terminate, in whole or in part, your access to the Platform if you violate the terms and conditions set forth in this Section.
4. Your Content and Suggestions
A. License to Your Content.The Platform includes features that involve information that you upload, submit, or send through the Platform when using portions of the Platform not generally available to the public as a registered user (“Your Content”). When you submit Your Content to the Platform, you grant BiG a non-exclusive, royalty-free, non-transferable (except to a permitted assignee of this Agreement), non-sublicenseable (except to permitted subcontractors only to the extent necessary for the limited purpose of facilitating BiG’s provision of the Platform and subject to confidentiality restrictions) license to use Your Content for the duration of your Platform subscription (as specified in a Specific Agreement) to provide the Platform and other services specified in a Specific Agreement. You represent and warrant that you have the necessary rights to Your Content to grant the license in, as applicable, the Specific Agreement or this Agreement.
B. Your Suggestions and Other Content. We welcome your comments regarding the Platform, BiG Content, and our services. We welcome your comments regarding the Platform, BiG Content, and our other products and services, and any content you provide through interactive features we may offer on public-facing websites operated by BiG. If you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Platform and BiG’s services (including any related technology, but excluding Your Content as defined above), whether you send such information or materials to us through the Platform or through a separate communication channel, you grant us a non-exclusive, perpetual, royalty-free, irrevocable right to use, disclose, reproduce, modify, license, transfer, and otherwise distribute, and exploit any such information or materials in any manner. Please do not send us such information or materials, if you do not wish to grant us the rights set forth in this Section 4(B).
C. Prohibited Content. You agree that you will not use the Platform to send, post, or publish:
i. Any content that, in accordance with standards under applicable law, is obscene, defamatory, or libelous;
ii. Any message, data, code, or software that would violate our, or any third party, proprietary, or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential proprietary information, or use trademarks or service marks in an infringing fashion;
iii. Any advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload;
iv. Any materials that violate, could cause us or a third party to violate, or encourage us or a third party to violate any applicable law, statute, ordinance, or regulation; or
v. Any content or communications intended to impersonate someone else.
BiG may suspend or terminate, in whole or in part, your access to the Platform and the related services if you violate the terms and conditions set forth in this Section.
D. Your Responsibility for Your Content. Your Content is your sole responsibility. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the use of any of Your Content. BiG further reserves the right to monitor, delete or modify any of Your Content that violates this Agreement.
5. Electronic Messaging
If you create an account with the Platform and provide an e-mail address or mobile phone number, you agree that BiG may send you communications as part of the normal business operation of your use of the BiG Platform. You may not opt out of receiving certain communications related to the BiG Platform; however, you may opt out of receiving other types of communications from BiG at any time by following the instructions provided to you. You acknowledge that opting out of receiving certain communications may impact your use of the BiG Platform.
6. Third Party Websites
The Platform may provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Platform does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites, even if we receive a referral fee in connection with your use of such third-party websites.
7. Protection of Your Account Credentials
You are responsible for protecting your Platform account log-in credentials from unauthorized access and use. You must promptly notify BiG by e-mail at email@example.com of any known or suspected unauthorized use(s) of your account.
8. Disclaimer of Warranties
THE PLATFORM IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE PLATFORM; (ii) ANY ADVICE YOU GLEAN FROM THE Platform WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE PLATFORM. WE DO NOT PROMISE THAT THE Platform WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT OR A SPECIFIC AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.
9. Limitation of Liability
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.
BiG AND ITS LICENSORS, PARENTS, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, OR SUCCESSORS-IN-INTEREST WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE PLATFORM OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE PLATFORM AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF BiG.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PLATFORM WILL BE TO STOP USING THE PLATFORM.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF BiG, ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) or your direct provable damages OR THE AMOUNT OF FEES YOU PAID tO BiG IN THE 12 MONTHS PRECEDING THE CLAIM.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST BiG.
YOU WILL HOLD HARMLESS, INDEMNIFY, AND DEFEND BiG, ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, “BiG PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM) RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE BiG PARTIES (I) ALLEGING INJURY, DAMAGE, OR LOSS RESULTING FROM YOUR USE OF THE Platform; (II) ALLEGING THAT CONTENT YOU SUBMITTED THROUGH OR RELATING TO THE Platform INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK OR MISAPPROPRIATES A TRADE SECRET OF A THIRD-PARTY; (III) RELATED TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (IV) YOUR USE OF INFORMATION OBTAINED THROUGH THE Platform.
You will have the right to defend and compromise such claim at your expense for the benefit of the BiG Parties; provided, however, you will not have the right to obligate the BiG Parties in any respect in connection with any such settlement without the prior written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the BiG Parties may do so to protect their interests and you will reimburse all costs incurred by the BiG Parties in connection with such defense.
11. Digital Millennium Copyright Act Procedure
BiG investigates notices of copyright infringement and takes appropriate actions under the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512(c), as follows:
- All written notification, pursuant to the DMCA, must be submitted to BiG at firstname.lastname@example.org.
- If you are a copyright owner or agent thereof and believe that third-party submitted content or materials, including photographs and digital images (“Third-Party Submission”), available through this Platform infringes upon your copyrights, you may submit written notification, pursuant to the DMCA, to the address identified above. To be effective, the written notification must include:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party 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; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- If you believe that your Third-Party Submission, which was removed (or to which access was disabled), is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent or authority under the law, to publish or use the Third-Party Submission, you may submit a written counter-notice, pursuant to the DMCA, to the address identified above. To be effective, the written counter-notice must include:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or in Dallas, Texas, if your address is outside of the United States), and that you will accept service of process from the person, or the person’s agent, who provided notification of the alleged copyright infringement.
- If a counter-notice is received by BiG, BiG may send a copy of the counter-notice to the original complaining party (or agent thereof) informing that person that BiG may replace the removed Third-Party Submission or cease disabling it in ten business days. Unless the copyright owner (or agent thereof) files an action seeking a court order against the provider of the Third-Party Submission, the removed Third-Party Submission may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at BiG’s sole discretion.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or identification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider (such as or including BiG), who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. Accordingly, if you are uncertain whether Third-Party Submission infringes your or others’ copyrights, please consult with a copyright attorney prior to making a notice under the DMCA.
12. CHOICE OF LAW
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the Laws of the State of Texas, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive Law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
13. Dispute Resolution
- Binding Mutual Arbitration. Any dispute, claim or controversy in connection with, arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in Dallas County, Texas before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
- Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees.
- Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.
- Arbitration is on an Individual Basis Only; Class Action Waiver. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the arbitrator’s power to rule on his or her own jurisdiction and the validity or enforceability of the agreement to arbitrate, the arbitrator has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section will remain in force.
14. Miscellaneous Terms
- Complete Agreement. Except for any Specific Agreements (which take precedence over this Agreement to the extent conflicting), this Agreement constitutes the entire agreement between you and BiG relating to your use of, and access to, this Platform and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
- Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. Where there is a conflict between the terms in a Specific Agreement and the terms in this Agreement, the conflicting terms in Specific Agreement shall take precedence.
- Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
- No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
- No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
- Language of the Agreement. Although this Agreement may be translated into other languages, the English language version of this Agreement shall control in any dispute between the parties.
- No Third Party Beneficiaries. Nothing in this Agreement will confer upon any person, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
- Notices. You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 15. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing BiG with up-to-date contact information, which you may do by updating your account information through the Platform or by sending a message to us via the contact information provided in Section 15. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
15. Contact Us
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail email@example.com.