THESE PLATFORM TERMS OF USE (“YOU”) FORM A LEGAL AGREEMENT BETWEEN YOU, THE END USER (“You”) AND BIGLY SALES, INC (“Company”) THAT APPLIES EACH TIME YOU USE OR ACCESS BIGLY THE [NAME OF SALES PLATFORM] (the “Platform”). YOU SHOULD THEREFORE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY, AS THEY GOVERN YOUR USE OF THE PLATFORM AND ITS FUNCTIONALITY. IN PARTICULAR, THIS YOU CONTAINS AN ARBITRATION PROVISION THAT WAIVES YOUR RIGHT TO A COURT HEARING AND/OR A JURY TRIAL. IF YOU DO NOT AGREE WITH THIS YOU, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE PLATFORM AND ARE INSTRUCTED TO EXIT THE PLATFORM IMMEDIATELY.
License Grant and Restrictions
This YOU provides to You a personal, revocable, limited, non-exclusive, non- sub-licensable, and non-transferable license to use and access the Platform during the Term specified herein solely for Your internal business use as specifically described herein and in the Platform, conditioned on Your continued compliance with all provisions of this YOU (including without limitation any external terms and documentation linked or referenced herein).
When using the Platform in accordance with the foregoing license, You shall not directly or indirectly (a) use the Platform to create any service, software or documentation that performs substantially the same functionality as the Platform, (b) disassemble, decompile, reverse-engineer, or use any other means to attempt to discover any source code, algorithms, or trade secrets underlying the Platform or any of its components, (c) encumber, sublicense, transfer, distribute, rent, lease, time-share, or use the Platform in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of, or otherwise modify the Platform, (e) disable, circumvent, or otherwise avoid or undermine any security device, mechanism, protocol, or procedure implemented in the Platform, (f) use or access the Platform for any unlawful, fraudulent, deceptive, tortious, malicious, or otherwise harmful or injurious purpose, (g) remove, obscure, deface, or alter any proprietary rights notices on any element of the Platform or accompanying documentation, or (h) use the Platform in any manner which could damage, disable, overburden, or impair the Platform or interfere with any third party’s authorized use of the Platform.
Acceptable Use Policy
In addition to and without limiting the terms of this YOU, You agree to comply with all of the requirements of Company’s Acceptable Use Policy available at BiglySales.com/privacypolicy[LINK], as may be updated by Company from time to time, which is incorporated into this YOU by reference.
User Obligations
You represent that You are at least eighteen (18) years of age or the legal age of majority in Your jurisdiction (whichever is greater) and will, at all times, provide true, accurate, current, and complete information (which You have all necessary rights, permission(s), prior express consent, or authority to provide) when submitting information through the Platform. In addition, You are responsible for compliance with all applicable laws, rules, and regulations, including but not limited to all laws and regulations relating to consumer protection, unfair competition, commercial electronic mail (email) and messages, telemarketing, outbound telephone solicitations and informational/transactional calls, advertising, privacy and data security with respect to Your use of the Platform (including use of any permitted copies of the Platform materials and information). This includes but is not limited to the Lanham Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission Act, and the Federal Trade Commission’s Telemarketing Sales Rule. If You access the Platform on behalf of any organization, Your organization shall be bound to this YOU and be liable for any breach by You. You represent that You have all rights, power, and authority to agree to this YOU on behalf of Your organization. The Platform is not intended for use or access by any individual under the age of thirteen (13) years, and Company does not knowingly, willingly, or intentionally collect personal information from such individuals in any medium for any purpose. Your Account You may be required to register an account to use the Platform or certain features of the Platform. Each registration is for a single user only, unless otherwise expressly agreed by Company. Registration for access to and use of the Platform may also require access credentials, such as a username and a password, or adherence to other access requirements as designated by Company in its sole discretion from time to time. You hereby agree to treat Your access credentials as confidential and not to disclose such information to any third party without the prior express written consent of Company, which may be withheld in its sole discretion. You shall immediately notify Company if You suspect or become aware of any loss, theft, or unauthorized use of Your login credentials. Company will not be liable for any loss or damage arising from Your failure (whether intentional or unintentional) to comply with these obligations. By submitting the requested information to the registration form on the Platform, You represent and warrant that the information You submit for registration is complete, true, accurate, and current in all respects. You must maintain and promptly update Your submitted account information to ensure that such information is complete, true, accurate, and current. Company reserves the right to suspend, terminate, or otherwise discontinue Your account and/or pending registration if Company has reasonable grounds to suspect that any information You have submitted is untrue, inaccurate, not current, or incomplete, or that Your registration, account, or use of the Platform is in violation of applicable law or this YOU.
Data Privacy
You understand, acknowledge, and agree that the operation of certain features of the Service may require or involve the submission, use, and dissemination of various items of personally identifiable information, including without limitation personal contact information. Please refer to Company’s Privacy Policy, available at BiglySales.com/privacypolicy [URL] (as updated from time to time), for a summary of Company’s policies and use practices regarding personally identifiable information.
Electronic Communications
Company may send emails or other electronic messages to You concerning Your use of the Platform, including without limitation by providing alerts or notifications within the Platform. You consent to receive such electronic communications and You agree that all such electronic communications constitute valid legal notices satisfying any requirement that such notices be in writing.
Links to Third-Party Sites and Services
Certain services, features, or components made available via the Platform are delivered by third-party providers. By using any product, service, or functionality originating from the Platform, You hereby acknowledge and consent that Company may share information and data that You submit or upload to the Platform with the applicable third-party provider as may be required to enable and facilitate the requested third-party product, service, or functionality.
EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY MATERIALS, PROGRAMS, APPLICATIONS, TOOLS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED THROUGH THE PLATFORM, AND YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF ANY DEALINGS BETWEEN YOU AND A THIRD PARTY.
Third-Party Terms and Conditions
Additional notices, terms, and conditions may apply to products, services, receipt of (or access to) certain materials, participation in a particular program, and/or to specific portions or features of the Platform, including without limitation the terms of third-party tools, applications, and APIs utilized by or incorporated in the Platform. Your use of any such third-party feature, tool, application, or API is conditioned on your acceptance of all third-party terms applicable thereto, and You agree to abide by all such terms in connection with Your use of the Platform. You hereby agree that (a) this YOU operates in addition to any terms of use imposed or required by any such third-party provider; and (b) the terms of this YOU supplement and do not alter or amend any such third-party terms of use.
Purchases and Payments
The Platform may contain the option for You to purchase certain products and services through Your account. The applicable fees (and any applicable discounts, if available), period of service, and permitted payment methods (e.g., credit, debit, or other online payment service) will be specified through the Platform at the time of order. All purchases are final and there will be no refunds or credits except as otherwise provided in this YOU, expressly communicated by Company in writing, or as may be required under applicable law. All transactions are void where prohibited by law and Company may request information in order to confirm the order and method of payment. Company reserves the right to terminate or suspend access to the Platform or any related product or service if You fail to pay any amounts when due. You shall reimburse Company for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past-due amounts. Unless otherwise specified herein, all obligations with respect to the amounts due to Company under the YOU shall survive the expiration or termination of the YOU for any reason. Upon placing an order, You agree to pay using the payment methods indicated and grant authorization to Company and/or the applicable third-party payment processor and/or facilitator to process the payment through Your indicated payment methods. Company and/or the applicable third-party payment processor shall charge, and You shall be responsible for, payment of all taxes, tariffs, levies, or duties applicable to Your payment. Except as otherwise expressly stated in the Platform, all transactions, charges, and payments will be denominated in the currency of the United States. You are responsible for the accuracy of all credit, debit, or other payment information that You provide to us. You are responsible for all transactions on Your account, including unauthorized transactions.
Proprietary Rights
All content included as part of the Platform, such as text, graphics, logos, and images, as well as the compilation thereof, and any software or other proprietary materials used on or integrated with the Platform, are the property of Company or its applicable third-party licensors, and are protected by copyright and other laws governing intellectual property and proprietary rights. . , including without limitation international treaties, protocols, and agreements regarding intellectual property such as the Berne Convention for the Protection of Literary and Artistic Works. Company reserves all rights in the Platform not expressly granted herein. You agree that You do not acquire any ownership rights in any part of the Platform under this YOU or through Your use of the Platform. Company does not grant You any rights or licenses, express or implied, to any intellectual property hereunder except as specifically authorized by this YOU.
Indemnification
You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns from and against any losses, costs, liabilities, damages, and expenses (including reasonable attorneys’ fees) relating to or arising out of Your violation of (a) this YOU, (b) any personal or proprietary rights of a third party, or (c) any applicable laws, rules, or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Company in asserting any available defenses.
Arbitration
In the event the parties hereto are not able to resolve any dispute between them arising out of or concerning this YOU, or any provisions hereof, whether arising in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved exclusively through final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration shall be in Broward County, Florida. The arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the arbitrator. This arbitration provision shall survive the termination of this YOU for any reason. Notwithstanding the foregoing, Company may bring a claim for injunctive relief against Your violation of this YOU in any court of competent jurisdiction.
Disclaimers and Excluded Liability
DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE PLATFORM AND SERVICES WILL MEET YOUR EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS; THAT THE PLATFORM AND SERVICES WILL BE FREE OF VIRUSES, MALWARE, OR ERRORS; OR THAT THE PLATFORM WOULD NOT BE FOUND TO CONSTITUTE AN “AUTOMATIC TELEPHONE DIALING SYSTEM” OR SIMILAR IF CHALLENGED UNDER THE TCPA OR SIMILAR STATE LAW. COMPANY FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA UPLOADED TO, STORED BY, OR TRANSMITTED BY THE PLATFORM OR SERVICES. IN NO EVENT SHALL COMPANY BE LIABLE HEREUNDER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STATUTORY LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, REVENUES, PROFITS AND/OR GOODWILL, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE OR IF COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY YOU TO COMPANY WITHIN THE THREE (3) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM OR CAUSE OF ACTION FIRST ACCRUED. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE INSUFFICIENCY OR FAILURE OF ANY REMEDY PROVIDED HEREIN. CERTAIN JURISDICTIONS AND LAWS MAY NOT PERMIT SOME OR ALL OF THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION. IN THE EVENT THAT SUCH A JURISDICTION OR LAW APPLIES TO THE SUBJECT MATTER OF THIS YOU, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Term, Termination, and Suspension
This YOU takes effect (or re-takes effect) at the moment You first access or use the Platform. Company reserves the right at any time and on any grounds, including without limitation any reasonable belief of fraudulent or unlawful activity, to deny or suspend Your access to the Platform or to any portion thereof in order to protect its name and goodwill, its business, the security and stability of the Platform, and/or the rights of others. This YOU terminates automatically if You fail to comply with any provision hereof, subject to the survival rights of certain provisions identified below. You may also terminate this YOU at any time by ceasing to use the Platform, but each re-access or renewed use of the Platform will reapply the YOU to You. Upon termination or expiration of the YOU for any reason, all licenses granted by Company hereunder shall immediately terminate, and You must immediately cease all use of the Platform. The provisions of this YOU concerning Company’s proprietary rights, disclaimers of warranty, limitations of liability, waiver and severability, entire agreement, indemnification rights, arbitration, injunctive relief, and governing law will survive the termination of this YOU for any reason. Company reserves the right, in its sole discretion, to terminate or suspend Your access to the Platform or any feature or portion thereof at any time, without notice to You, if Company reasonably determines or suspects that You are in violation of this YOU.
Governing Law
This YOU is governed by the laws of the State of Florida, United States of America, without reference to its principles of conflict of laws. The Platform may not be used or accessed from or in any jurisdiction that does not give effect to all provisions of this YOU, including without limitation this paragraph. If You are located in a country, territory, or other jurisdiction which does not give effect to all provisions of this YOU, or if Your use of or access to the Platform in accordance with this YOU would otherwise violate the applicable laws of Your jurisdiction, then: (i) You may not use or access any portion of the Platform for any purpose, and Company does not grant you any license, permission, or authorization whatsoever with respect to the Platform, whether under this YOU or otherwise; and (ii) Your use of or access to the Platform notwithstanding such lack of license, permission, and authorization from Company shall constitute an infringement of Company’s intellectual property and other proprietary rights, which Company may enforce to the maximum extent permitted under applicable law, in addition and without prejudice to any other right or remedy available to Company in connection with Your unauthorized use.
Independent Contractors
The relationship between You and Company under this YOU is that of independent contractors, and nothing herein or in Your use of the Platform shall be construed as creating any joint venture, partnership, employment, or agency relationship.
Security and Compliance
Company reserves the right to view, monitor, and record Your activity on the Platform without notice or permission from You. Company’s provision of the Platform is subject to existing laws and legal process, and nothing contained herein shall restrict or reduce Company’s ability to comply with governmental, court, and law enforcement requests or requirements involving Your use of the Platform or information provided to or gathered by Company with respect to such use.
Export Controls
You represent and warrant that You are not: (a) located in a country that is subject to a U.S. government embargo; or (b) listed on any U.S. government list of prohibited or restricted parties. You hereby agree that (i) You will comply with all applicable sanctions and export control laws, and (ii) You are solely responsible for ensuring that the Platform is used, disclosed, and/or accessed only in accordance with all applicable sanctions and export control laws.
Sevrability and Waiver
If any part of this YOU is determined to be invalid or unenforceable pursuant to court order or other operation of applicable law, such provision shall be deemed severed from this YOU, and the remainder of this YOU shall continue in full force and effect to the maximum extent permitted under applicable law. Failure to insist on strict performance of any of this YOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by Company of any right under this YOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.
Injunctive Relief
You acknowledge that any breach, threatened or actual, of this YOU would cause irreparable injury to Company not readily quantifiable as money damages, such that Company would not have an adequate remedy at law. You therefore agree that Company shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any such breach of Your obligations, without the necessity of posting bond or other security.
Changes to Terms
note that Company reserves the right to change the terms and conditions of this YOU by posting a revised set of terms, or mailing and/or emailing notice thereof to You (or such other method as may be required by applicable law). In addition, Company may add, modify, or delete any aspect, component, or feature of the Platform, but Company is not under any obligation to provide any upgrade, enhancement, or modification. Your continued use of the Platform following any announced change will be deemed as conclusive acceptance of any change to the YOU. Accordingly, please review the YOU on a periodic basis.
Contact Us
If You have any questions or comments regarding this YOU, please contact Company at:
BIGLY SALES
350 Lincoln Rd
Miami, Fl. 33139