Effective Date: June 29, 2020

This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "You"), and Big Cartel, LLC ("Big Cartel") - providers of the Big Cartel website located at bigcartel.com ("Big Cartel Site"), as well as related applications and services.

Big Cartel provides software programs that enable merchants to build online stores through which they can sell their products and services online ("Software"), including software applications ("Apps"). Big Cartel also provides merchants services, including hosting of the online store, email services, marketing services, and other related services as may be offered from time to time (collectively, "Services"). “Tools” refers to the Software, Apps, and Tax Calculation Tool.

This Agreement begins when You accept it (either in registration or if you take over an account of someone else, in accordance with the transfer terms provided in Section 13.6 below), and stays in effect until You or Big Cartel terminate Your account. This Agreement is subject to Terms of Service for the Big Cartel Site that are incorporated into this Agreement by reference and may be accessed through links in this Agreement and on www.bigcartel.com. In the event any terms provided in this Agreement conflict with the Terms of Service, the terms provided in this Agreement will govern. If You use the Tools or Services to collect personal data from end users in the European Economic Area or Switzerland, the Data Processing Addendum supplements this Agreement. In the event any terms provided in this Agreement conflict with the Data Processing Addendum, the terms provided in the Data Processing Addendum will govern.

By accepting this Agreement and by using the Tools and Services, You agree to be bound by the terms and conditions of this Agreement, and to all terms and conditions that are incorporated into this Agreement by reference. We may change the terms and conditions of this Agreement, and if You continue using the Tools and Services after such changes You will also be bound by those amended terms and conditions.

You authorize Big Cartel to process any and all of Your Big Cartel account transactions initiated through the use of the password or passphrase that You establish through the Big Cartel Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.

Big Cartel is not bound by this Agreement unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.

The "Recap" sections are provided to summarize parts of the Agreement. These "recaps" are not part of the Agreement. Please read the language of the Agreement as that is what is binding.

1. Eligibility Criteria

Big Cartel's Tools and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the last sentence, the Tools and Services are available to people between the age of 13 and 17 on the condition a parent or legal guardian consents and agrees to be bound for such person. Use this link to provide evidence of consent from a parent or legal guardian. If You are registering as a business entity, You represent that You have the authority to bind such entity to this Agreement. You further represent that You (a) are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, (b) are not listed on any U.S. government list of prohibited, debarred, or restricted parties, and (c) have not had a prior account terminated by Big Cartel or been associated with a Big Cartel account that was previously terminated. Big Cartel may use techniques to confirm the accuracy of the information You provide to us. If for any reason, Big Cartel, in its discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement, terminate Your account, and refuse to provide the Tools, Services, Additional Services, and Beta Services under this Agreement to You.

You agree that by using the Tools, Services, Additional Services, and Beta Services, You are electronically signing this Agreement and that such signature has the same effect as a standard ink or paper signature. You acknowledge and agree that You: (i) are able to print a complete and legible copy of this Agreement and save the same in a complete and legible form, (ii) are capable of opening, reading, printing, downloading and/or saving all sections of the Agreement, and (iii) had reasonable opportunity to review each section of the Agreement, read the Agreement and agree to it.

Recap

In order to use Big Cartel, you need to be able and authorized to enter into a legally binding agreement. Usually that means you need to be an adult, 18 years or older, but not this time! If you're between 13 and 17 years of age, you can still use Big Cartel's services! You just need evidence of your parent or guardian's consent. There's a parental consent form they can fill out here.

We may take steps to verify any information you provide to us, and we may revoke your account and ability to use Big Cartel if we believe you gave us inaccurate information.

And don't try to register for a new account if we've previously terminated your account. If you break the rules and your account is terminated, then you can't use our services.

2. Big Cartel Ownership and Licenses

2.1 Tools Ownership

You acknowledge and agree that, as between You and Big Cartel, all Tools, Services, Additional Services, Beta Services, and any other content provided by Big Cartel, and all worldwide intellectual property rights therein, are the exclusive property of Big Cartel. All rights in and to the Tools, Services, Additional Services, Beta Services not expressly granted to You in this Agreement are reserved by Big Cartel.

2.2 Access and License

Subject to the terms and conditions of this Agreement, Big Cartel grants to You a non-exclusive, non-transferable, revocable, limited license to (a) remotely access and use the Software on servers operated by or for Big Cartel ("Big Cartel Servers") through the Big Cartel Site solely for the purpose of building, maintaining, and operating an interactive store hosted by the Big Cartel Servers on which You offer products or services ("Your Store"), and (b) download an App to a compatible mobile device solely to process transactions for Your Store. You may modify code that we make available to You for the purpose of customizing features in Your Store.

2.3 Restrictions

You acknowledge that the Tools and their structure, organization, and source code constitute valuable intellectual property of Big Cartel. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Tools, Services, Additional Services, Beta Services; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Tools, Services, Additional Services, Beta Services to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Tools, or (d) transfer Your interest in and to Your Store to any third party.

Some Apps are only available for certain mobile devices. Big Cartel may update and change which devices are available from time to time. An App may not be compatible with Your mobile device. No mobile device is compatible if it has been modified from the manufacturer's software or hardware guidelines, including any disabling of controls, "jail breaking" the device or adding malware. Use of such a modified mobile device with an App or the Services is expressly prohibited and is grounds for termination of this Agreement, Your use of the Tools, Services, and Your Store.

With all Apps, You are responsible for the following:

• Determining compatibility with Your mobile device;
• Understanding whether the terms of Your agreement with Your mobile device manufacturer and mobile service carrier apply to Your use of the App; and
• Controlling access to and use of Your mobile device to prevent the bypassing, disabling, or overriding of any restrictions, security measures, or other limitations of an App or Your device and to prevent malware or other malicious code from being introduced to Your mobile device.

2.4 Big Cartel Trademark Ownership, License and Restrictions

Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for the Tools and Services, or parts of them, Big Cartel grants to You a non-exclusive, non-transferable, revocable license (without the right to grant sublicenses) to display those trademarks that Big Cartel provides to You under this Agreement ("Big Cartel Marks"), solely for display on those locations on Your Store's web pages or on promotional materials for Your Store or in connection with an App as designated by Big Cartel in its sole discretion, and that Big Cartel may periodically change from time to time. Big Cartel grants no rights in the Big Cartel Marks other than those expressly granted in this Section 2.4. You acknowledge Big Cartel's exclusive ownership of the Big Cartel Marks and that all use of Big Cartel Marks inures to Big Cartel benefit. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Big Cartel Marks or in such a way as to create combination marks with the Big Cartel Marks. At Big Cartel's request (in its discretion), You agree to immediately discontinue all use and display of the Big Cartel Marks. You acknowledge and agree that, except with respect to the trademark license granted in this Agreement, no licenses are granted by Big Cartel to any other trademarks, service marks, or trade names owned by Big Cartel, or its affiliates.

Recap: We grant you a conditional and limited license to display certain Big Cartel trademarks in your store and through the app. Want to let the world know you're using Big Cartel? We couldn't be happier. BUT, display our marks within our rules - don't try to pass them off as your own, don't combine them with other marks, and stop using them if we ask you to. And follow our brand guide. You don't have any other rights to our trademarks. We own those trademarks and you agree not to challenge or interfere with our trademark rights.

You agree that the nature and quality of all goods and services that You provide in connection with the Big Cartel Marks and all related advertising, promotional and other uses of the Big Cartel Marks by You shall be of a high standard so as to protect and enhance the Big Cartel Marks and the goodwill pertaining to such marks. You further agree that all materials bearing the Big Cartel Marks shall conform to Big Cartel's guidelines, which Big Cartel may change from time to time, and that You shall obtain Big Cartel's approval prior to using the Big Cartel Marks in any manner that is inconsistent with Big Cartel's guidelines.

Recap

Any use of our marks must be in keeping with our guidelines, and they may only be used in association with quality goods and services. If you want to use our marks in a way not covered or allowed by our guidelines, ask us!

2.5 Additional Features

Big Cartel may make certain features, software, services, and programs available to You for use with or in connection with the Tools and Services ("Additional Services"). Additional Services may be provided by third parties and may be subject to additional or independent terms and conditions. Big Cartel is not responsible for any Additional Services provided by third parties. You agree that You will not use such Additional Services unless You have agreed to the applicable terms and conditions, including Your payment of additional fees as required.

3. Services

3.1 Services

Upon activation of Your account and subject to the payment of applicable fees and Your compliance with this Agreement, Big Cartel will provide You during the term of this Agreement with the hosting, support and other miscellaneous Services as provided on the pricing page of the Big Cartel Site and for the Software and Apps licensed to You under this Agreement. Your Store will be hosted on Big Cartel Servers on which several merchants may share the resources and network capacity.

Recap

As soon as you create an account, pay any required fees, and agree to this Merchant User Agreement, we'll provide you with the level of hosting, support, and other services described on our pricing page - and we'll continue to do so until you or we terminate your account. Also, your store will be hosted on servers shared with other merchants' stores. No one gets a whole server all to them self - that'd just be a waste of resources!

3.2 Changes in Services

Big Cartel reserves the right to change, amend, and otherwise alter the Tools, Services, Additional Services, and Beta Services without prior notice to You. You agree to receive administrative communications from Big Cartel with regard to the Tools, Services, Additional Services, and Beta Services, Your account, policy changes, system updates, and other notices. If You do not agree to such changes, then You may terminate use of the Services. Big Cartel will not refund any fees or payments in the event of such termination.

3.3 Service Downgrades

Downgrading Your Service may cause the loss of content, features, or capacity of Your account. Big Cartel does not accept any liability for such loss.

3.4 Subscriptions

Subscriptions are a type of Service that allows Your customers to make donations to You to support You and Your projects. This subscription relationship is solely between You and Your customers. Big Cartel is only providing tools to facilitate offering donations through Your Store. You are solely responsible for complying with all laws, rules, and regulations applicable to a subscription relationship, and the donations, including determining, collecting, withholding, and reporting any and all taxes imposed by United States or foreign jurisdictions on such amounts. You agree not to use subscriptions:

• To obtain investments or sell securities of any kind;
• To offer anything of value to Your customers;
• To do anything that would violate the other terms of this Agreement, including, but notlimited to,the prohibitions provided below in Sections 5.1 and 5.2.

3.5 Beta Services

Big Cartel may offer You access to services, features and tools that are being explored, developed, and tested ("Beta Services"). Your use of Beta Services is voluntary and at Your sole risk. You understand and agree that the Beta Services may contain bugs, errors and other defects. Technical support for Beta Services may be limited, if offered at all. Beta Services may be discontinued or changed at any time in Big Cartel’s sole discretion and without prior notice to You. Big Cartel may charge, and You agree to pay, all fees associated with Beta Services while they are in beta or when offered generally. Beta Services that become generally offered will be a "Service" for purposes of this Agreement. If You are using Beta Services, You agree to receive related correspondence and updates from us, and acknowledge that opting out may result in cancellation of Your access to the Beta Services.

4. Your Store & Content Control

4.1 Control of Your Store

You will be solely responsible for the development, promotion, back-up, operation, and maintenance of Your Store, including accepting, processing, and filling customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that Big Cartel has no obligation to back-up any data related to Your Store's operations, that You will not have access to such data if Your account is terminated and You should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.

4.2 Ownership and Control of Your Store's Content

You retain all right, title, and interest in and to all intellectual property rights in Your content, exclusive of any content provided by Big Cartel. You will be solely responsible for creating, managing, editing, reviewing, deleting, and otherwise controlling the content on Your Store, including all descriptions of the products and services You offer to customers of Your Store, trademarks You use, and user-generated content on and related to Your Store. As a conduit, Big Cartel will give You discretion over Your content on the condition it is compatible and interoperable with the Tools and Services provided by Big Cartel under this Agreement and Your content and use of the Services, Tools, Additional Services, Beta Services, and Big Cartel Site comply with all applicable laws and the terms of this Agreement. Regardless of other language in this Section, if Big Cartel has reason to believe that You have breached any of the terms of this Agreement, Big Cartel may suspend or terminate Your Store and/or any access to information or data related to Your account and the Tools and Services, and disable and delete any content on Your Store.

4.3 Passive Conduit

You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services, and content, Big Cartel and its Tools and Services are acting only as passive conduits for the distribution and publishing of such products, services, and content on Your Store. Big Cartel has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed on Your Store or any other content published and distributed on or through Your Store. Regardless of anything else in this Agreement, if Big Cartel believes in its discretion that Your Store or any products, services, content, or other materials in the Store or on Big Cartel Servers, or Your use of any Tools, Service, Additional Service, or Beta Service, may create liability for Big Cartel or harm other users of Big Cartel’s websites or services, then You agree that Big Cartel may take any actions that Big Cartel believes are prudent or necessary to minimize or eliminate Big Cartel’s potential liability or to protect other users of Big Cartel’s websites or services, including terminating Your account or denying You Service.

4.4 Content License

During the period that Big Cartel provides Services to You pursuant to this Agreement, You hereby grant to Big Cartel and its subcontractors, and vendors a non-exclusive, irrevocable, sublicenseable, royalty-free, transferable, worldwide license to reproduce, use, distribute, create derivative works of, alter, modify, resize, crop, watermark, reformat, resave, compress, decompress, rewrite, cache, strip metadata, transmit, publicly perform, publicly display, and digitally perform Your content, data, and trademarks solely to host Your Store, run the Tools, provide the Services and to otherwise promote and manage the Big Cartel Site and Services. By making Your Store public, You agree that others can view Your content. You understand and agree that copies of Your Store, or parts of Your Store, may continue to be stored on Big Cartel Servers after You terminate Your account. Big Cartel agrees not to use Your content, data, and trademarks after Your account is terminated except as required to comply with legal requests or requirements, investigate claims, defend itself, and maintain records. You acknowledge and agree that Big Cartel, its subcontractors, and vendors may use Your content for beta testing purposes even if such beta tests do not have a positive impact on performance.

4.5 Order Fulfillment

Big Cartel may make certain order fulfillment services, such as payment verification and processing, available to You. Some of these services may be available through third party vendors, such as PayPal and Stripe, and Your relationship with such vendor will be pursuant to a separate agreement between You and the applicable vendor. You understand and agree that Big Cartel is not responsible for the availability or provision of such services or for such third party vendor’s non-performance or breaches of its agreement. Big Cartel does not guarantee the availability, security, or delivery of such services or that You will be eligible for any vendor’s services. It is Your responsibility to address all issues with regard to a vendor, including payments, refunds, chargebacks, collections, and service outages, with such third party vendor. It is also Your responsibility, and You agree to comply with all applicable agreements You have with such vendors, as well as all laws and industry guidelines regarding payment and orders that apply to merchants, including laws with regard to taxes, privacy, and PCI guidelines.

4.6 Claims Against Your Store

We handle third party claims against Your Store in accordance with our Copyright and Trademark Policy, which is incorporated into this Agreement by reference, and which you agree to.

4.7 Feedback

If You provide any feedback (“Feedback”) about Big Cartel or the Tools, Services, Beta Service, or Additional Services, then You agree Big Cartel can use such feedback in its discretion without any obligation, attribution, or compensation to You, and You waive all rights in the Feedback.

5. Covenants and Prohibitions

5.1 Covenants

You covenant that all products, services, and content offered, published, or distributed on or through Your Store and Your related activities, including use of the Tools, Services, Additional Services, and Beta Services will not violate the Big Cartel’s Terms of Service as it may be amended from time to time, and will not:

1. be false, inaccurate, or misleading;
2. be fraudulent or involve the sale of counterfeit, stolen, or infringing items;
3. infringe or misappropriate any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy;
4. violate any law, statute, ordinance, regulation, or industry guideline (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, data security standards, unfair competition, antidiscrimination, criminal activities, or false advertising);
5. be defamatory, libelous, offensive, unlawfully threatening, or harassing
6. advocate, promote, or provide assistance in connection with violence, discrimination, significant risk of death or injury, or other unlawful activities;
7. be obscene or contain child pornography;
8. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information, or disable any system, software, or hardware that is intended to encrypt, obscure, or protect data or personal information;
9. involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and You shall not use Your account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid, ponzi schemes or the like;
10. involve the collection, sale, storage, or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
11. be harmful or potentially harmful to Big Cartel Servers or systems as determined in Big Cartel's discretion, including without limitation overloading Big Cartel's technical infrastructure;
12. involve subleasing Your account or offering "free space" on or other access to Your account or Your Store to third parties;
13. involve selling Your account other than as part of a sale of Your business and with our prior written consent;
14. create liability for Big Cartel, its vendors or its subcontractors or expose them to undue risk or otherwise engage in activities that Big Cartel, in its sole discretion, determines to be harmful to Big Cartel, its vendors, affiliates, operations, reputation, or goodwill;
15. include descriptions of goods or services that violate any applicable law, statute, ordinance, or regulation, or that violate this Agreement;
16. use Your Store to link to, or to support, directly or indirectly, any other store, website, entity or activity that violates these terms or any applicable law, statute, ordinance, or regulation; and
17. not to bypass, disable or override any restrictions, security measures, or other limitations on Your account, Your Store, the Services or Tools.

Recap

You promise your store and the goods and services you offer will comply with our Terms of Service.

You also promise not to use the services to do bad things. Don't use Big Cartel's service to harm us or anyone else. Follow laws and industry guidelines. Just be good.

5.2 Prohibited and Restricted Activities

Prohibited Products & Services

You agree not to publish, offer for sale, sell, or otherwise distribute any of the following items on, through or connected with Your Store or through any App:

• Blood, bodily fluids, antibodies, body parts, and items derived from such things;
• Burglary tools and surveillance equipment;
• Counterfeit items;
• Content or material that is infringing or otherwise violates rights of publicity, privacy or proprietary rights, including: music; movies; e-books; games; videos; photographs and software that You do not own or have permission to use;
• Illegal drugs and drug paraphernalia and substances designed to mimic illegal drugs;
• Tobacco products;
• E-cigarettes and smokeless tobacco products;
• Fireworks, destructive devices, explosives, and hazardous materials;
• Identity documents, government documents, personal financial records, or personal information (in any form, including mailing lists and doxing);
• Lottery tickets, raffle, opportunity drawing and sweepstakes entries, slot machines, or similar gambling devices and products;
• Obscene material;
• Child pornography;
• Offensive material;
• Hate speech;, including, but not limited to, speech that is harmful to others, or that is or promotes racism, sexism, transphobia, homophobia, xenophobia, white supremacism, fascism, or white nationalism;
• Products or content glorifying guns, gun culture, violence, illegal activity, self-harm, or policing;
• Products or content associated with hate groups or depicting white supremacist, fascist, or white nationalist symbols or phrases, including, but not limited to, the Confederate battle flag, racial slurs, and messages supporting organizations or political candidates that support or espouse such beliefs or ideologies;
• Unwashed clothing and bedding and previously used cosmetics; see restricted items for washed used clothing and bedding and unused cosmetics;
• Police badges or uniforms;
• Prescription drugs, steroids, items containing pseudoephedrine, and medical devices;
• Chemicals, serums, toxins, and similar items;
• Pets, animals, and wildlife products;
• Recalled items;
• Products and services that violate any law, statute, ordinance, regulation, or third party prohibition;
• Stocks or other securities;
• Code or similar automatic items, programs, or processes, such as automated software, data mining software, scrapers, bots, and automatic checkout “add to cart” services;
• Online and social media activity, such as selling likes, views, followers, and subscriptions;
• Weapons and other related items, including, without limitation, firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, and switchblade knives;
• Products or content promoting prohibited medical claims, such as anti-vaccine items;
• Stolen property, including digital and virtual goods; or
• Any product or service that is illegal, violates the rights of others or is marketed or sold in such a way as to create liability for Big Cartel.

Restricted Activities

You may publish, offer for sale, sell, or otherwise distribute the following items on, through or connected with Your Store, but only if applicable federal, state, local, and other laws, as well as third party terms, permit You to do so, and You fully comply with such laws and terms:

• Digital files that You do not own or have all necessary rights or license to store, display, perform, copy and distribute;
• Event tickets;
• Food items;
• Hazardous, restricted, or perishable items;
• Pesticides;
• Animals, animal products, plants, and seeds;
• Charitable services or goods, and fundraising;
• Artifacts;
• Currency and stamps, but sales of virtual currency are prohibited other than by the operator of the virtual world;
• Used items, such as washed clothing and bedding, and unused cosmetics;
• Hemp-derived CBD products; or
• Adult items or pornography.

In addition, Big Cartel reserves the right to prohibit the use of the Services for any purpose that it deems objectionable or that poses elevated risks.

Alcohol

Big Cartel will no longer authorize the use of its Services to publish, offer for sale, sell, or otherwise distribute alcoholic products. If Big Cartel previously authorized You to publish, offer for sale, sell, or otherwise distribute alcoholic products on, through, or connected with Your Store, then You may continue to do so, although please note that You will not be able to use some updates and new features of the Services. If You are opening a new store, or have not yet received authorization to use Your Store for alcoholic products, then You are prohibited from doing so.

6. Fees; Taxes; & Audit Rights

6.1 Fees

You shall pay the fees set forth on the Pricing page for the plan You choose, and the fees otherwise provided for Services. Big Cartel may change the fees for its Services from time to time. If You do not accept a change in the fees, then You may terminate Your account or discontinue a Service. You agree not to disguise, hide, or otherwise misrepresent the number of products that You offer on or through Your Store, or through use of any features of the Services, Tools, or otherwise.

Recap: Fees are listed on the Pricing page and elsewhere for specific services. You agree to pay for the level of service, and types of service, you choose to use. We may change the fees periodically, and you're welcome to terminate your account or stop using a service if you're not happy with those changes. You also agree not to misrepresent the quantity of products sold on or through your store.

6.2 Payment Terms

You agree to pay, via PayPal or another electronic payment vendor, for the Services, Beta Services, and Tools in advance on a monthly or annual basis. You understand that all fees are non-refundable. You may cancel Your account at any time. There will be no refunds or credits for partial months or years of service, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.

Upon non-payment Big Cartel in its discretion may re-attempt to collect the amount due up to 3 times before suspending or terminating Your account or immediately suspend or terminate Your account.

6.3 Taxes

6.3.1 All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Big Cartel's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Tools and performance of the Services under this Agreement.

You are solely responsible for determining, collecting, reporting, and paying any and all applicable taxes, including but not limited to sales and use tax, goods and services tax (“GST”), value added tax (“VAT”), excise, premium, import, export, consumption and other applicable taxes (“Applicable Taxes”), regulatory fees, levies, or charges and duties assessed, incurred, or required to be collected or paid for any reason in connection with goods and services that You offer for sale on, through or connected with Your Store, including all amounts that You collect through subscriptions. For sales shipped or delivered into United States jurisdictions where Big Cartel is required to collect and remit sales and use tax on your behalf (“Marketplace Facilitator Jurisdictions”), as determined by Big Cartel in its sole discretion, we will automatically calculate, collect, and remit sales and use tax on your behalf in accordance with applicable law.

6.3.2 The tax calculation tool provided by Big Cartel that allows you to calculate United States sales and use tax (“Sales Tax”) rates (“Tax Calculation Tool”), is provided as a convenience only and you use it at your sole discretion and risk. The following terms apply:

a) We provide no representation, warranty, guarantee, or advice, and we disclaim any responsibility to verify, the following: (i) the accuracy of the Sales Tax rules or methodology utilized by the Tax Calculation Tool; (ii) the application of Sales Tax to goods or services or of the tax jurisdiction assignment functionality tax rates of Sales Tax; and (iii) whether or not the amounts Big Cartel collects on your behalf satisfy your obligations to collect Sales Tax. You are responsible for reviewing and determining the correct calculation settings, including your obligation to collect Sales Tax, tax nexus, product tax code assignments, and all related information in connection with goods and services You offer on, through or connected with Your Store. The calculation of Sales Tax is based on your calculation settings and information you provide to Big Cartel for the jurisdiction(s) where you have an obligation to calculate, collect and remit Sales Tax.

b) The Tax Calculation Tool is limited to the calculation of Sales Tax and does not calculate or collect any product-based excise taxes or any fees or surcharges. The Tax Calculation Tool calculates tax based the entire amount of the transaction (including sale price, shipping fees and any other charges subject to tax).

7. Disclaimer of Warranties

Big Cartel, its vendors, and service providers, provide the Tools, Services, Beta Services, and Additional Services, on an “as is” and “as available” basis and expressly disclaim any and all express, implied, or statutory warranties, including the warranties of merchantability, fitness for a particular purpose, quiet enjoyment, title, non-infringement, and warranties arising from a course of dealing, usage, or trade practice. Big Cartel, its vendors, and service providers, do not warrant that the Tools, Services, Beta Services, and Additional Services will be error-free or uninterrupted and make no representations regarding uptime, use, data security, accuracy, and reliability of the Tools, Services, Beta Services, and Additional Services. You acknowledge and agree that this Section 7 is reasonable and an essential element of this Agreement and that in its absence, the economic terms of this Agreement would be substantially different.

The disclaimers in the prior paragraph do not affect any warranties that cannot be excluded or limited under applicable law, and only apply to the maximum extent permitted by law.

8. Limitation of Liability

In no event shall Big Cartel, its vendors, or service providers, or their officers, members, directors, employees, contractors, or agents be liable for lost profits or any special, indirect, punitive, incidental, or consequential damages arising out of or in connection with the Tools, Services, any Beta Services, or Additional Services, or this Agreement (however arising, including negligence). Big Cartel’s, its vendors’, and service providers’, cumulative liability, and the liability of their officers, members, directors, employees, contractors, and agents to You or any third parties in any circumstance is limited to the amount of fees You paid to Big Cartel in the one (1) year immediately preceding the month in which the action giving rise to the liability first arose.

The limitations of liability in the prior paragraph do not affect any liabilities that cannot be excluded or limited under applicable law, and only apply to the maximum extent permitted by law.

9. Indemnity

You agree to indemnify and hold Big Cartel, its vendors, and service providers, and their officers, members, directors, agents, contractors, and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any content and other materials provided, stored, sold, or otherwise distributed by You or generated by users of Your Store, (b) any claims arising from the sale or license of goods or services in Your Store, and (c) any breach by You or those You control of this Agreement or the documents it incorporates by reference. Big Cartel’s, its vendors', and service providers' indemnity rights shall not be limited or offset by any contributory negligence by Big Cartel. Big Cartel reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Big Cartel’s defense of such claim.

10. Customer Data, Your Data & Privacy Policy

10.1 Data Ownership

As between Big Cartel and You, You shall own all data collected from or about customers of Your Store, and Big Cartel processes such data on your behalf.

10.2 Texts

If You provide Big Cartel with a phone number, then You consent to receive text messages from Big Cartel at that number, including any messages delivered from an automatic dialing system. You understand that the text messages may assist in the provision of products or services. You also understand that You are not required to consent to receive texts to obtain products or services from Big Cartel, but if You do not consent You will not be able to receive text messages. Big Cartel uses Your phone number as provided in our Privacy Policy, which is incorporated into this Agreement by reference and as it may be amended from time to time.

10.3 Your Store’s Privacy Policy

You must establish, post, maintain and adhere to a privacy policy for Your Store that complies with applicable laws and regulations, including informing Your customers what personal information You collect, how You use such information, the effective date of Your privacy policy and how Your customers can learn of changes to Your Store’s privacy policy.

You consent to the collection, processing, and transfer of all data by Big Cartel, and third parties contracted by Big Cartel, to assist in the performance of the Services. You may not use the Services to send unsolicited commercial messages (spam) or otherwise in violation of any law, statute, ordinance, regulation, or industry guideline.

11. Breach

Without limiting other remedies, Big Cartel may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend, lock, or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Tools, Services, Additional Services, or Beta Services to You if: (a) You fail to pay any fees in accordance with this Agreement; (b) You breach this Agreement or the documents it incorporates by reference in any other manner; (c) Big Cartel is unable to verify or authenticate any information You provide to Big Cartel; or (d) Big Cartel believes that Your actions may harm, cause financial loss or legal liability for You, Your Store customers, Big Cartel, or Big Cartel’s users or affiliates.

12. Suspension and Termination

12.1 Suspension

At Big Cartel’s discretion, Big Cartel may suspend Your account or any part of Your account by deactivating any access by You or by Your customers to any information contained on the Big Cartel Servers related to Your account, and by suspending Your use of an App. Suspension may also include disabling Your Store and/or any access to information or data related to Your account. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.

12.2 Termination

You and Big Cartel may terminate this Agreement and Your account at any time.

12.3 Rights Upon Termination

In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement will automatically and immediately cease and You shall stop using the Big Cartel Site, Tools, Services, Additional Services, and Beta Services, destroy all copies of the Software in Your possession, if any, and remove all Apps from Your mobile devices. You will not have access to Your account after termination. Upon termination, there will be no refund provided to You except as otherwise agreed to in writing by Big Cartel and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Big Cartel to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs, and/or attorneys' fees or expert witnesses' cost or other costs of any kind under this Agreement.

13. General

13.1 Governing Law and Jurisdiction

This Agreement will be governed in all respects by the laws of the State of Utah without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction. You agree that any cause of action that may arise under this Agreement or in connection with Your use of the Tools, Services, Additional Services, and Beta Services will be commenced and heard only in the appropriate court having jurisdiction over Salt Lake City, Utah. You hereby consent to the exclusive jurisdiction of and venue in such courts.

13.2 Legal Compliance

You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding Your use of the Tools, Services, Additional Services, and Beta Services and Your listing and sale of products and services on Your Store.

13.3 No Agency

You and Big Cartel are independent contractors, and this Agreement is not intended to create, and does not create any agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship.

13.4 Force Majeure

Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorist act, governmental act or order, act of God, failures in electric power or telecommunications services, or any other event beyond the control of the party.

13.5 Notices

Except as explicitly stated otherwise, any notices will be provided via email to Big Cartel, LLC at [[email protected]](mailto:[email protected]) and to the email address or addresses You provide to Big Cartel (in Your case). Notice will be deemed given twenty-four (24) business hours after email is sent. Alternatively, Big Cartel or You may send notice by certified mail, postage prepaid and return receipt requested. If certified mail is used, notice will be deemed given three (3) days after the date of mailing.

13.6 Assignment

You shall not assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement without our prior written consent. Any assignment, transfer, or delegation in contravention of the foregoing provision will be null and void. You agree that this Agreement may be assigned by Big Cartel, in Big Cartel’s discretion without Your consent. This agreement is binding on Your permitted assignees and transferees.

13.7 No Third Party Beneficiary

You acknowledge and agree that nothing in this Agreement, express or implied, is intended to or will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies, or other benefits with respect to or in connection with any agreement or provision contained in or contemplated by this Agreement.

13.8 Severability; Waiver

If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Big Cartel’s failure to act with respect to a breach by You or others does not waive Big Cartel’s right to act with respect to subsequent or similar breaches.

13.9 Construction

Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section. When used in this Agreement, the term "including" means "including but not limited to," and "discretion" means the sole discretion of the applicable party unless expressly stated to the contrary.

13.10 Survival

Sections 2.1 (Ownership), 2.4 (Big Cartel Trademark Ownership, License and Restrictions), 4.4 (Content License), 6 (Fees), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnity), 10 (Customer Data, Your Data, & Privacy Policy), 12.3 (Rights Upon Termination), and 13 (General), as well as all definitions needed to give meaning to such sections and any terms that by their nature survive, will survive any termination or expiration of this Agreement.

13.11 Entire Agreement

This Agreement, together with the agreements and policies that are incorporated into this Agreement by reference, sets forth the entire understanding and agreement between You and Big Cartel with respect to the subject matter of this Agreement.

13.12 Important Note to New Jersey Consumers

Some special rules apply for residents of New Jersey. If You are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to You (and do not limit any rights that You may have) to the extent that they are unenforceable under New Jersey law: (a) in the Section titled Limitations of Liability, specifically the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) in the Section titled Limitations of Liability, specifically the limitation on liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) in the Section titled Limitations of Liability, specifically the application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) in the Section titled Indemnification, specifically the requirement that You indemnify Big Cartel (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) in the Section titled Governing Law and Jurisdiction, specifically the Utah governing law provision (for example, to the extent that Your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).