SHOPSAVVY TERMS OF SERVICE
Big in Japan Inc., a Texas Corporation, including its successors and assigns, (”Big in Japan”) operates ShopSavvy and certain co-branded versions of its application under contract to other third parties (collectively, the “Application”). You may only use the Application pursuant to the following terms and conditions, which you accept by your use of the Application. Use of the Application is subject to additional terms and conditions defined by our content providers (”Licensors”), which you accept by your use of the Application. Big in Japan, reserves the right to modify or revise these Terms of Use and/or Privacy Statement or its other policies at any time at its sole discretion. Any such modifications to the Terms of Use and Privacy Statement shall be effective within forty-eight (48) hours of being posted on the Application unless otherwise stated by Big in Japan, in writing. You are bound by such modifications or revisions, and should therefore visit this page frequently to review the terms. Your continued use of the Application following Big in Japan’s posting of any changes or modifications to these Terms of Use and/or Privacy Statement will constitute your acceptance of such changes or modifications. In the event that you do not agree to any changes or modifications of these Terms of Use and/or Privacy Statement, you should not continue to use the Application.
LICENSE AND APPLICATION ACCESS
Big in Japan grants you a non-exclusive right and license to access and use the Application for personal, noncommercial purposes, other than to purchase or sell items through the Application’s Storefronts Service, or to purchase items from third-party merchants accessible via links on the Application. This license does not include and strictly prohibits: any resale of the Application or its contents; any collection and use of any product listings, descriptions, or prices other than as expressly authorized herein; any derivative use of the Application or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. The Application, including its operation, interface and contents, are covered by United States copyright laws and international laws and treaties, and may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any unauthorized commercial purpose without the express prior written consent of Big in Japan. Any unauthorized use shall immediately terminate the licenses and rights granted by Big in Japan and any Licensors hereunder, and may subject you to civil and/or criminal prosecution. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to any page of the Application so long as the link does not portray Big in Japan, its subsidiaries, affiliates, Licensors, co-brand partners and other partners or its or their respective services in a false, misleading, derogatory or otherwise offensive or damaging manner. You may not use any Big in Japan, Licensor, subsidiary, affiliate, co-brand partner, or other partner logo or other proprietary graphic or trademark as part of a link to the Application without first obtaining the express written consent of Big in Japan, the subsidiary, affiliate, co-brand partner or other partner or Licensor (as applicable).
Big in Japan does not guarantee continuous, uninterrupted or secure access to its services or the Application, and the operation of the Application may be interfered with by numerous factors outside or within Big in Japan’s control.
CONTENT
Big in Japan provides a number of different services to assist you in comparison-shopping for products and services on the Application. Big in Japan may be paid by merchants or other third parties for listing products and services on the Application and for promotions such as featured merchants, featured products and showcases.
Big in Japan does not sell, resell or license any of the products listed on the Application, nor is Big in Japan acting as an agent of sale, and Big in Japan disclaims any responsibility for, or liability related to, such products and services (see Disclaimer of Warranties and Limitation of Liability, below). Any questions, complaints or claims related to any product should be directed to the appropriate merchant or seller.
Big in Japan does not warrant that product descriptions, pricing, editorial commentary or any other content of the Application, regardless of its source, is accurate, complete, reliable, current or error-free. Application content is provided for informational purposes only and does not constitute an endorsement by Big in Japan of any product, merchant, seller, service, or any reviews or comments thereof regardless of the source of such review or comment. Big in Japan assumes no liability for inaccuracy or incompleteness in its search results, editorial content, user ratings (e.g. user merchant rating, or user product rating) or other content on the Application.
OTHER BUSINESSES AND LINKS TO OTHER APPLICATIONS
Big in Japan may provide links to the Applications of third-party merchants, affiliated companies, co-brand partners and other parties. These links are provided solely as a convenience to you, and do not constitute an endorsement by Big in Japan of the content of such third-party sites nor of the business practices of such other businesses, entities or individuals. Big in Japan is not responsible for examining or evaluating, and does not warrant or claim responsibility in any way, the products, services, offerings or business practices of any of these businesses, entities or individuals or the content of their web sites. You should carefully review their privacy statements and other conditions of use.
Big in Japan has no control over the business practices of any third-party merchant or seller, nor does it control in any way the quality, safety or legality of any item listed on the Application or any business transaction that occurs as a result of products listed on the Application.
IN THE EVENT OF A DISPUTE BETWEEN YOU AND A MERCHANT LISTED ON THE APPLICATION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE BIG IN JAPAN, ITS SUBSIDIARIES, AFFILIATES, CO-BRAND PARTNERS OR OTHER THIRD PARTIES UNDER CONTRACT WITH BIG IN JAPAN, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST CLAIMS AND DAMAGES OF ANY KIND, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.
If you are a California resident, by using the Application, you explicitly waive the rights granted to you under California Civil Code 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE APPLICATION IS PROVIDED BY BIG IN JAPAN ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG IN JAPAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APPLICATION OR THE INFORMATION, CONTENT, GRAPHICS, LINKS, MATERIALS, PRODUCTS, OR SERVICES INCLUDED ON THE APPLICATION, OR THEIR ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS. IN ADDITION, THIRD PARTIES PROVIDE SOME OF THE MATERIAL ON THE APPLICATION; TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIG IN JAPAN SHALL NOT BE RESPONSIBLE FOR ANY SUCH THIRD PARTY MATERIAL. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APPLICATION OR ANY TRANSACTION RESULTING THEREOF IS SOLELY AT YOUR OWN RISK. BIG IN JAPAN DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE APPLICATION OR THE SERVICES. OPERATION OF THE APPLICATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF BIG IN JAPAN’S CONTROL.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG IN JAPAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD PARTY RIGHTS REGARDING THE APPLICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIG IN JAPAN MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES REVIEWED ON THE APPLICATION OR BOUGHT AND/OR SOLD USING THE APPLICATION, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED BY THEM, OR THAT THE APPLICATION, ITS SERVERS, OR E-MAIL SENT FROM BIG IN JAPAN ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIG IN JAPAN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES.
CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENTS OF THE APPLICATION, OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, WITH BIG IN JAPAN’S PRIVACY POLICY OR ANY OTHER POLICIES OF THE APPLICATION, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF THE APPLICATION.
INDEMNITY
To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold Big in Japan, its subsidiaries, affiliates, co-brand partners, and other parties with which Big in Japan is under contract, and their respective officers, directors, employees and agents free and harmless from and against any claims, actions and demands, including, without limitation, any legal and accounting fees resulting from your use of the Application and/or your breach of the Terms of Use and Privacy Statement and/or Member Agreement, and/or resulting from any and all content you submit to Big in Japan and/or the Application. Big in Japan shall provide notice to you of any such claim, suit or proceeding.
GOVERNING LAW
These Terms of Use and Privacy Statement will be governed by and construed in accordance with the laws of the State of Texas, without regard to principles of conflicts or choice of law. In addition, the application of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, is expressly excluded hereby. Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, all disputes arising out of or related to this Agreement, including the scope, the construction or application of this Agreement, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in force. The arbitration hearings and all meetings pursuant to this section shall be held in Dallas, Texas, USA, and shall be conducted in English. If the parties cannot agree upon a single arbitrator within fifteen (15) days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in Texas and the USA generally, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of the Internet industry) qualified by the American Arbitration Association in Texas. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in Texas with knowledge of Internet commerce in Texas and the USA generally shall be selected by the American Arbitration Association to resolve the dispute. The arbitrator(s) shall conduct a hearing within thirty (30) days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within five (5) days after the completion of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorneys’ fees or arbitrators’ fees under this section.
IP OWNERSHIP AND COPYRIGHT INFRINGEMENT
Big in Japan disclaims any responsibility for the content of any third party materials provided through or on its Application or other services (”Third Party Content”). Big in Japan will respond to notices of alleged infringement regarding Third Party Content sent pursuant to, and in accordance with, the Digital Millennium Copyright Act (”DMCA”), which may include Big in Japan removing or disabling access to Third Party Content claimed to be the subject of infringement or other activity. All notices sent to Big in Japan regarding matters other than informing Big in Japan that a party’s copyrighted material may have been infringed (and relating only to Third Party Content) will not receive a response through this process.
Written notification must be submitted to the following Designated Agent:
By Mail:
Big in Japan, Inc.
Attn: General Counsel
1950 Stemmons Freeway, Suite 2022
Dallas, TX 75207
By Fax: (214) 550-2001
GENERAL
If any provision of these Terms of Use and Privacy Statement is held to be invalid, void or unenforceable for any reason, such provision shall be struck and the remaining provisions shall remain enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that these Terms of Use and Privacy Statement and the Member Agreement and all agreements and notices incorporated herein may be automatically assigned by Big in Japan, in our sole discretion, to a third party. You may not assign your obligations to any other entity.
ADDRESS FOR NOTICE
Notices to Big in Japan (other than as aforementioned for Digital Millennium Copyright Act infringement notices) can be sent by accessing the following link: http://www.biggu.com/contact-us/. Big in Japan’s mailing address is:
Big in Japan, Inc.
Attn: General Counsel
1950 Stemmons Freeway, Suite 2022
Dallas, TX 75207
