BIGMURPHYS.COM

Terms and Conditions of Service

Last Revised: July 22nd, 2019

Welcome to www.bigmurphys.com, the website (“Site”) of Big Murphy’s LLC, a Florida limited liability company, hereinafter sometimes also referred to as “Big Murphy’s”, “we”, “us”, or “our”.

IMPORTANT: PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”), CAREFULLY. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE (BUT ARE NOT LIMITED TO) VARIOUS LIMITATIONS AND EXCLUSIONS, A BINDING ARBITRATION CLAUSE, A CLASS ACTION WAIVER, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

 

These Terms include not only the following Terms and Conditions of Service, but also incorporate by reference all policies, guidelines, special or supplement terms and conditions of use or service posted by us on the website located at www. bigmurphys.com, any of its subdomains or any mobile application which may be licensed by us to you (“Site”) from time to time(as such terms and conditions of use, policies, notices, guidelines, special, supplemental terms and conditions of use or service may be amended, modified, supplement or restated by Big Murphy’s from time to time).

 

Additionally, our Notice of Privacy Practices (“Privacy Notice”) available at https://bigmurphys.com/pages/terms-and-conditions-1 informs you of Big Murphy’s collection and use of your information, including your Personal Information as defined in the Privacy Notice, in relation to your use of our Site and/or other related products or services we may make available to you via or in relation to your use of the Site (collectively, “Services”). 

 

Any person who accesses this Site but does not successfully register to become a Big Murphy’s Customer is referred to in these Terms as a “Visitor.” Persons who access this Site and successfully register to become a Big Murphy’s Customer are referred to as a Customer. Visitors and Customers are also referred to in these Terms as “You”, “you”, “Your”, or “your.”

 

Your access to and use of this Site or any Services offered on or through this Site is subject to and conditioned upon your acceptance of and your full compliance with these Terms. The Terms is a legally binding agreement, which governs your access to and use of this Site, including any content, feature, functionality or service at any time or from time to time, offered or provided on or through this Site, whether you are simply a Visitor to this Site or an Big Murphy’s Customer. By accessing, browsing, submitting any information, to or through, or otherwise in any manner using the Site, and linking to these Terms or by accessing, submitting any information to or through, or otherwise in any manner using any service offered on or though this Site, You acknowledge that you have read and understand, and agree to be bound by and to comply with all of these Terms. If you do not agree to all of these Terms without any modification by you, you are not authorized to and must not access or use this Site or any feature, functionality or service offered on or though this Site.

 

If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity. If you do not agree to any of these Terms, you have no right to and may not obtain information from or otherwise continue using the Site. Failure to use the Site in compliance with these Terms may subject you to civil penalties.

 

We reserve the right at any time or from time to time, to update, modify, revise, amend, supplement, restate, or terminate these Terms or any part thereof for any reason and without notice, and without penalty. The most current version of these Terms can be accessed on the Site by selecting the “Terms and Conditions” link provided on the Site’s home page. You should review these Terms on a regular basis – for instance, each time you access the Site – so you may be apprised of any changes made. Any such termination, revisions or changes shall be binding upon you and effective immediately upon our posting of the revised these Terms or changed Terms on the Site. 

 

  1. Definitions

 

The following terms used in these Terms with their initial letters capitalized, and those terms defined in the introductory paragraphs or elsewhere in these Terms, throughout these Terms have the meanings provided. Defined terms may be used in the singular, the plural or possessive form as the context requires:

  1. Account” means with respect to Customers, the account created by us on or through the Site for a Customer’s use in connection with the ordering of Big Murphy’s Services or Big Murphy’s

 

  1. “Collective Content” means Big Murphy’s Content and Customer Content.

 

  1. Content” means any text, graphics, images, music, software (excluding any Big Murphy’s Software), audio, video, information or other electronically stored data.

 

  1. Customer” means a person who completes the Account registration process as described under the “Account Registration” section below and whose Account remains in good standing and has not otherwise been restricted or terminated by Big Murphy’s. 

 

  1. “Customer Content” means all Content that a Customer provides, posts, uploads, publishes, submits, transmits, or makes available on the Site, including but not limited to all such Content provided for purposes of establishing, initializing, modify, or creating an Account.

 

  1. “Customer Feature” means any feature or functionality of the Site which Big Murphy’s may designate from time to time for use by Big Murphy’s Customers for or in connection with the ordering or use of Big Murphy’s Services or purchase of Big Murphy’s

 

  1. Big Murphy’s Content” means all Content that Big Murphy’s makes available through the Site including any Content licensed from a third party, but excluding Customer Content.

 

  1. “Big Murphy’s Goods” means any merchandise, including clothing (i.e., suits, jackets, pants, shirts, bags, belts, shoes, ties, etc.) and accessories offered for sale or sold by Big Murphy’s to Customers.

 

  1. Big Murphy’s Services” means services offered by Big Murphy’s from time to time to Customers on or through the Site, as well as, Services provided by Big Murphy’s to its Customers from time to time, including clothing and fashion consultation, custom fitting and measurement, tailoring and alterations of clothing.

 

  1. Big Murphy’s Software” means any software, html or other code, at any time or from time to time, in whole or in part, comprising the Site or utilized by Big Murphy’s to facilitate any Big Murphy’s Services on or through the Site.

 

  1. Governmental Authority” means any domestic or foreign, federal, state, local, provincial, county, or municipal or supra national government or political subdivision thereof, or any agency, instrumentality, subdivision, court, tribunal, commission or other authority of such government or political subdivision, or any self-regulated, private, non-governmental or quasi-governmental organization, body or authority (to the extent that the rules, regulations or orders thereof have the force of Law). 

 

  1. Intellectual Property Rights” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
  2. Law” or “Laws” means, as amended from time to time, any domestic or foreign federal, state, local, provincial, county or municipal or supra national Law (including common law), rule, regulation, statute, treaty, constitution, ordinance, decree, code, proclamation, policy, procedure, guideline, standard, order, judgment, or other legally enforceable requirement enacted, issued, adopted, promulgated, enforced, ordered or applied by any governmental authority.
  3. Services” means collectively all services Big Murphy’s offers through the Site to Customers and visitors, including Customer Feature, Big Murphy’s Content, Big Murphy’s Goods, Big Murphy’s Services, Big Murphy’s Software, among others.

Additionally, these Terms incorporate by reference those terms and phrases as defined in our Privacy Notice.  

  1. Explanation of Big Murphy’s Services and Big Murphy’s Goods

 

  1. Big Murphy’s Services

 

Customers may, from time to time, as and when generally available, request and schedule appointments for Big Murphy’s Services via the appointment scheduling or booking feature through the Site or other means (and each such scheduled appointment accepted from time to time by Big Murphy’s a “Booking”), which Big Murphy’s Services may comprise in-person personalized consultation, fitting, tailoring, and alteration services at one or more Big Murphy’s retail locations as determined by Big Murphy’s. Scheduling of Bookings for Big Murphy’s Services may take place either through the Site or by telephone. Availability of Bookings for Big Murphy’s Services may be limited and space is not guaranteed. The date, time and location of any request for a Booking placed by a Customer through the Site will be entirely up to the Customer, subject always however to availability as determined by Big Murphy’s in its sole discretion. In most instances, the Customer may access on the Site, a listing of available appointments at the respective Big Murphy’s retail locations from which to select and confirm a Booking. Once the Customer has selected and confirmed a Booking, they may receive an e-mail confirmation or other notification of the confirmed Booking. 

 

All Customers are expected to keep their respective Bookings and to arrive on time at the applicable Big Murphy’s premises. However, if for any reason you need to cancel or postpone your Booking, we asked that you do so, not less than 24 hours prior to the Scheduled appointment time. You may cancel Bookings through the Site using the “booking cancellation” feature provided for that purpose or via a telephone call to us at 1 (585) 703-4506. We may charge you a fee of up to US$20.00 (each a “Cancellation Fee”) and you agree to pay us the Cancellation Fee in the event that you cancel a Booking less than 24 hours from the scheduled appointment time, failed to keep a schedule Booking, or are late by more than fifteen (15) minutes. We reserve the right not to honor a scheduled Booking in the event that the Customer fails to arrive for the scheduled appointment within fifteen (15) minutes thereof.

 

WHILE THE CUSTOMER MAY SELECT THE DATE, TIME, AND LOCATION OF A DESIRED BOOKING, ANY DECISION BY BIG MURPHY’S TO ACCEPT A REQUEST FROM A CUSTOMER FOR BIG MURPHY’S SERVICES IS A DECISION MADE IN BIG MURPHY’S SOLE DISCRETION AND ALL BOOKINGS ARE SUBJECT TO AVAILABILITY.

 

  1. Big Murphy’s Goods

 

Big Murphy’s Goods may from time to time comprise a variety of customized and bespoke clothing, including shirts, suits, jackets, pants, and related accessories. Once you become a Customer, you may schedule a Booking through the Customer Features on the Site for the purpose of scheduling one or more appointments at an Big Murphy’s retailer store, at which an Big Murphy’s tailor or other personnel may take your measurements for fitting of Big Murphy’s Goods. Thereafter, you may, via access to your Account on the Site, order, or re-order Big Murphy’s Goods. In order to place an order for Big Murphy’s Goods, you must complete at least some Big Murphy’s Services and have your measurements taken by Big Murphy’s in-person. Unless and until you have had your measurements taken, you will be able to use the Site to design custom garments, but you will not be able to place any orders.

 

  1. Acknowledgements and Disclaimers

 

NEITHER BIG MURPHY’S NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY ASPECT OF THE SITE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THIS SITE AND THE INFORMATION, CONTENT, FILES, DATA OR OTHER MATERIALS CONTAINED ON THE SITE AND OTHER SERVICES PROVIDED BY BIG MURPHY’S ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY, ON OR THROUGH THE SITE WILL BE TIMELY, ACCURATE, CURRENT OR SECURE, OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE SITE OR THAT WE WILL CORRECT ANY DEFECTS.

 

Although we take reasonable steps to prevent the introduction of viruses, worms, Trojans or other malicious software (“malware”) or other destructive materials to the Services, BIG MURPHY’S does not guarantee or warrant that the Services or materials that may be downloaded from the Services do not contain such contaminating or destructive properties.

 

IN NO EVENT WILL BIG MURPHY’S BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR ANY INFORMATION, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (EVEN IF BIG MURPHY’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMITTED BY LAW.

 

  1. Modification of Site or Terms

 

Big Murphy’s reserves the right, at its sole discretion, to modify the Site or to modify these Terms at any time and without prior notice, and without penalty. If we modify these Terms – which may include updating, revising, amending, supplementing, restating, or terminating these Terms – we will either post the modification on the Site or otherwise provide you with notice of the modification. Please also refer to the “Last Updated” date indicated at the beginning of these Terms. Through continued access or use of the Site after Big Murphy’s has posted a modification thereon or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must discontinue use of the Site.

 

  1. Customer Eligibility

 

The use of this Site and Big Murphy’s Services are intended for persons who are 18 years of age or older. Any access to or use of any Big Murphy’s Services, Customer Features, or the Site by anyone under 18 is prohibited. By registering on the Site as a Customer, or accessing or utilizing any Big Murphy’s Services or Customer Features on or through the Site you represent and warrant that you are 18 years of age or older. Persons under the age of 18 may not avail themselves of any Big Murphy’s Services or purchase any Big Murphy’s Goods, unless accompanied by an eligible Customer over the age of 18. In any event, by becoming a Customer, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by all of these Terms. Without limiting the foregoing, the Big Murphy’s Services, Big Murphy’s Goods and the Site use of the Site to order or purchase any Big Murphy’s Services or Big Murphy’s Goods, are not available to Customers or any other person or entity who or which do not have a valid Account or who or which have had their Account temporarily or permanently deactivated.

  1. Accounts

 

  1. Registration, Profile, and Customer Content

 

In order to become a Customer and to access Customer Features, request a Booking for Big Murphy’s Services, purchase Big Murphy’s Goods, or utilize or enjoy other Services via the Site you must register to create an Account. You may register directly via the Site or as described in this Section. 

 

As a Customer, your Account and your Account profile page will be created based upon the Customer Content you provide to us. In some instances, Big Murphy’s will provide you, either in person or by electronic means, information necessary to establish your Account. Such information may include, for example, a confirmation code or other identifying means that confirms that you have participated in one or more Big Murphy’s Services and are permitted access to the features of the Site designated by us from time to time for our Customers.

 

Any information that you provide, publish or post to or through the Site (including any profile information you provide) or send to other Customers or Visitors (including via any feedback, text, any email feature, or through any Big Murphy’s-related Facebook, Twitter or other social media posting) will be considered Customer Content. You consent to us using your Customer Content to create an Account that will allow you to utilize features of the site reserved for our Customers, in connection with their ordering of Big Murphy’s Services and purchase Big Murphy’s Goods. Our collection and use of personal information in connection with the Site and Big Murphy’s Services is as provided in Big Murphy’s Privacy Notice located at https://bigmurphys.com/pages/terms-and-conditions-1.

 

 

As a Customer, you are solely responsible for your Customer Content and your interactions with other members of the public, including Customers. You agree to provide and maintain accurate, current and complete information and that Big Murphy’s and visitors to the Site may rely on your Customer Content as accurate, current and complete.

 

As a Customer, you are the sole authorized user of your Account, and are responsible for maintaining the confidentiality of any password provided by you or Big Murphy’s for accessing Customer Features. You are solely and fully responsible for all activities that occur under your Account (even if that content or activity occurs from other individuals who have accessed the Sites and other Services through your account), and Big Murphy’s expressly disclaims any liability arising from the unauthorized access or use of your Account. If at any time you suspect that any unauthorized party may be using your Account or you suspect any other breach of security, you agree to notify us immediately.

 

In some cases, Big Murphy’s utilizes third party user account management providers, (such as Salesforce), to manage your Account. If you are directed to any such Big Murphy’s third party account management provider you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.

 

  1. Limitation, Suspension, Termination, and Cancellation of Accounts

 

As a Customer, you may not have more than one (1) Account with Big Murphy’s at any given time. You must (and you agree to) provide accurate, current and complete information as requested or prompted during or in connection with the Account registration process, and to promptly update such information to keep it accurate, current and complete. Big Murphy’s reserves the right to suspend, restrict, or terminate your Account and your access to the Customer Features if you provide any false or misleading information, or otherwise violate any of these Terms. You are responsible for safeguarding your password and agree not to disclose your password to any third party. You have sole responsibility for any activities or actions conducted under your Account, whether or not you have authorized such activities or actions. You are obligated to immediately notify Big Murphy’s of any unauthorized use of your Account.

 

Big Murphy’s may, in our sole discretion and without thereby incurring any liability to you or otherwise, with or without cause, with or without prior notice and at any time, limit, suspend, deactivate or cancel your Account and/or deny you access to the Customer Features, Big Murphy’s Services, or Big Murphy’s Goods. If we exercise our discretion under these Terms to do so, any or all of the following may occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Customer Features, your Account, or receive Big Murphy’s Services or other assistance from Big Murphy’s; (b) any pending or accepted future Bookings for Big Murphy’s Services will be immediately terminated; and (c) any pending or future orders for Big Murphy’s Goods will be immediately terminated and refunded, if applicable. Upon termination, deactivation, or suspension of your Account, you are required to immediately cease all use of the Customer Features and any Big Murphy’s Services and may not re-register under any other Account. 

 

You may cancel your Account at any time via the “Cancel Account” or other similarly designated feature of the Site, or by notifying us thereof by e-mail at sales@bigmurphys.com or by contacting us by telephone at (585) 703 4506.

 

  1. Big Murphy’s Communications

 

By becoming a Customer, you acknowledge that we may from time to time and as needed communicate with you by various means, including via e-mail, text message, telephone calls, and push notifications to the telephone number you provide to us, in relation to your use of the Site, the status of your Account, your purchase or use of Big Murphy’s Goods, Big Murphy’s Services, or other Services, among others. Please note that this may include communications generated by automatic telephone dialing systems or other methods and systems, which will deliver pre-recorded messages sent by or on behalf of Big Murphy’s, its affiliated companies or other Customers, including but not limited to: operational communications concerning your Account, use of Customer Features, Big Murphy’s Services, and Big Murphy’s Goods, and updates concerning new and existing features on the Big Murphy’s Site.

 

In other instances, we will seek your consent to receive our communications before contacting you by asking you to “opt-in” to such communications. This may include receiving our newsletter, promotions and promotional materials provided by Big Murphy’s or third parties, and updates and news concerning Big Murphy’s. 

 

Where we have already received your opt-in consent to receive certain communications, IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER SUCH “OPT-IN” COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS THAT ARE PROVIDED TO YOU ON THE SITE OR VIA THE COMMUNICATION, IF APPLICABLE (e.g. the “unsubscribe” button in our promotional emails). Standard text messaging charges applied by your telephone phone carrier will apply to text messages we send.

 

 

  1. Orders, Returns, and Other Financial Terms

 

  1. Placing Orders

 

Once you have successfully registered on the Site as a Customer and your Account has thereby been established, you may request a Booking for the scheduling of one or more appointments at a Big Murphy’s retail store at which an Big Murphy’s tailor or other personnel may take your measurements for fitting of Big Murphy’s Goods. Once we have your measurements and you have made your selections for Big Murphy’s Goods, orders for the purchase of Big Murphy’s Goods may be placed by you in-person at one of our retail store locations or, subject to availability and at Big Murphy’s option, through a Customer Feature on the Site. In some cases such Customer Features will provide Customers with a means to select and customize Big Murphy’s Goods - for example by selecting style, cut, material, pattern, and the like. In other cases a Customer may make such selections in-person at a Big Murphy’s retail store during the Customer’s Booking for Big Murphy’s Services. We have made reasonable efforts to accurately display the colors and styles of the Big Murphy’s Goods that appear on the Site. However, we cannot guarantee that your computer monitor’s display of any color or style will be accurate. 

 

Big Murphy’s reserves the right, in its sole discretion and at any time after receiving any order from you for any Big Murphy’s Services or Big Murphy’s Goods, to accept, refuse, place on hold or cancel any order you submit to us, including the right to limit any quantities of Big Murphy’s Goods you may wish to purchase. Once we receive your order, we’ll provide you with an e-mail confirmation at the email address you provide for that purpose when you register on the Site for an Account. Your receipt of an order confirmation does not signify Big Murphy’s acceptance of your order or a confirmation of our offer to sell; but simply an acknowledgement that we received your order.

 

After receiving your order, Big Murphy’s may contact you to request clarification, additional or missing information regarding your order or your Account, including measurements - even pictures - or customizations. It is your responsibility to deliver to us in a timely manner all additional information related to your order we may request. Big Murphy’s reserves the right, in its sole discretion, to place your order on-hold or even cancel it if any requested information is not received in time or is incomplete. Orders which we place on-hold may at any time thereafter be cancelled by us if there is any missing information which we require. With respect to any such orders which we cancel for which you have, at the time of cancellation, already have made payment for the Big Murphy’s Goods in question, we will issue a credit or refund according to these Terms. 

 

In the event Big Murphy’s makes a change to or cancels your order, we will attempt to notify you by contacting the contact email address or telephone number which you provide to us as part of your registration for and Account on the Site.

 

If you want to make any changes to an order, please contact us as soon as possible, but in any event within 24 hours after submitting your order, for help. Please note however that we do not guarantee that we will be able to make any changes to your order, so make sure that you double check your selections and customizations before placing your order. You may not make any changes to any of your orders at any time following the expiration of the first 24 hours of first submitting such order to us.

 

 

 

 

  1. Payments and Authorizations

 

In many cases, Big Murphy’s Services may be provided at no cost. However, in some circumstances there may be a charge associated with Big Murphy’s Services and, as such, you agree to pay Big Murphy’s for the total fees incurred in connection with any Big Murphy’s Services rendered. You further agree to pay Big Murphy’s for all fees and charges associated with your purchase of any Big Murphy’s Goods or the purchase of any Big Murphy’s Goods under your Account. With respect to Big Murphy’s Goods, all fees and charges are due in full at the earlier of time of purchase or confirmation of your order whether made in-person or through the Site.

 

In connection your use of the Customer Features (including during your Account registration), you may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to Big Murphy’s or its third party payment processor(s). You agree to pay Big Murphy’s for any Big Murphy’s Services provided or Big Murphy’s Goods made in connection with your Account or your use of any of the Customer Features, or otherwise provided to you or on your behalf, in each case by one of the payment methods from time to time described on provided for on the Site, including the charging of the credit card account. You hereby authorize the payment and collection of any and all such amounts by the charging of the credit card, or via such other payment method provided for under your Account, You acknowledge and agree that Big Murphy’s may, in its sole discretion, directly charge such credit card account (or directly avail itself of such other payment methods) or may utilize the services of third party online payment processors or others to do so. If you are directed to any Big Murphy’s third party payment processor(s), you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.

 

In furtherance of your use of the Customer Features, you understand and agree that Big Murphy’s reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card or other payment method for any fees or charges for or associated with any Big Murphy’s Services or Big Murphy’s Goods or (ii) charge your credit card or other payment method a nominal amount, not to exceed one dollar ($1) per verification, or a similar sum in the currency in which you are transacting, to verify your credit card or other payment method. As a general rule, Big Murphy’s will collect any fees or charges due once all necessary order information has been obtained by Big Murphy’s from the Customer and Big Murphy’s confirms that the Customer’s order is complete. In our discretion such fees and charges may instead be collected by us at an earlier or later point. Big Murphy’s does not control, and is not responsible for, any fees or charges that may be charged to a Customer by her or his bank, financial institution, or payment provider, with respect to Big Murphy’s collection of fees or payments, and Big Murphy’s expressly disclaims all (and you agree that Big Murphy’s will have no) liability in this regard.

 

Big Murphy’s will take reasonable action to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you.

 

  1. Pick-Up and Shipping

 

Big Murphy’s prefers that all Big Murphy’s Goods that you purchase be picked up by you in person at one of our retail store locations so that you may have an opportunity to try on those Big Murphy’s Goods and determine whether they have the appropriate fit and otherwise meet your needs and expectations. Pick-ups are part of the Big Murphy’s Services and may be scheduled by telephone or via the Customer Features, subject always however to availability and these Terms. We encourage all Customers to take advantage of in-person fittings to assure that your Big Murphy’s Goods fit properly. Should the Big Murphy’s Goods not fit properly, or require adjustment, the in-person pick-up will provide us an opportunity to measure you for alterations or provide you with alternatives. 

 

In some limited instances, Big Murphy’s may elect to ship Big Murphy’s Goods directly to you. For example, Big Murphy’s Goods may be shipped to you following alterations in its sole discretion needed after your first try-on. If you are a repeat Customer, Big Murphy’s may provide you with the option of having Big Murphy’s Goods shipped directly to you. Shipping charges and expected delivery dates may be displayed through the Customer Features at the time of your order, or may appear in an order confirmation e-mail. Based on our service locations and your shipping address, we determine the shipping carrier for your order. Carriers that may be used include, but are not limited to, the U.S. Postal Service (USPS), United Parcel Service (UPS), and FedEx. Occasionally, we may send your order in two or more shipments.

 

  1. Alterations

 

Any time you place an order for Big Murphy’s Goods, we encourage you to take advantage of the Big Murphy’s Services and pick-up your Big Murphy’s Goods in-person. During pick-up you will have the opportunity to try on those Big Murphy’s Goods to examine the fit and finish. In many cases, alterations may be needed or desired. You may also desire to have alterations made to Big Murphy’s Goods you have owned for some period of time but which no longer fit appropriately. In most cases alterations will be carried our free of charge; however, Big Murphy’s reserves the right in its sole discretion to charge for alterations. 

 

  1. Returns and Limited Warranty

 

Big Murphy’s takes pride in its Big Murphy’s Goods and Big Murphy’s Services and desires that all Customers are satisfied with their purchase. If for any reason within (i) the first thirty (30) days of your pickup of the Big Murphy’s Goods; or (ii) if you do not pick up your Big Murphy’s Goods in person but rather we ship them to you, then within the first 30 days following delivery of those Big Murphy’s Goods to you, you are unsatisfied with your Big Murphy’s Goods, you may have the Big Murphy’s Goods altered. In most cases, alterations should be made in-person with a Big Murphy’s authorized seller; however, in some cases we may permit you to ship a garment that needs alterations to us at your expense. At Big Murphy’s sole discretion we may provide you with a pre-paid shipping label, although we are no obligated to do so. Refunds generally will be processed within three (3) days of receipt of the returned Big Murphy’s Goods. 

All Big Murphy’s Goods are warranted against defects in materials and workmanship for a period of thirty (30) days from your receipt of such Big Murphy’s Goods. If there is any problem concerning the quality or fabrication of your garments, please contact Big Murphy’s for assistance, within thirty (30) days after receiving your order such assistance, which may include the issuance of a replacement.

Big Murphy’s reserves the right in its sole discretion to deny warranty coverage or the issuance of a credit or refund for any Big Murphy’s Goods that are believed to be (1) previously worn, (2) damaged, (3) laundered, (4) misused, (5) mistreated, or (6) otherwise not in their original condition. Big Murphy’s Goods that have already been altered or adjusted in any way by anyone other than by Big Murphy’s cannot be returned. Any items returned to Big Murphy’s that do not meet these requirements will be returned to the Customer without processing and without any further obligation on Big Murphy’s part.

 

  1. Abandoned Garments

 

In the event that any Big Murphy’s Goods which you order or which is ordered under your Account is not picked up by you from any of our retail store locations within 90 days immediately following the date you are initially notified by us, whether via contact email, contact telephone number or otherwise, that such Big Murphy’s Goods are ready for pick up by you, Big Murphy’s shall have the right in any such event and in its sole and absolute discretion to discard or dispose of those Big Murphy’s Goods in any manner, Big Murphy’s deems fit. Although Big Murphy’s may use reasonable efforts to attempt to contact you during such 90 day period, in no event however, will Big Murphy’s be responsible for or have any liability to you or otherwise for or in connection with any loss or damage that you may suffer or incur arising from or in connection with any failure by Big Murphy’s to contact you with regard to any such Big Murphy’s Goods or with respect to the disposal or discarding by Big Murphy’s of any such Big Murphy’s Goods following expiration of the aforesaid 90 day time period, nor will Big Murphy’s have any obligation to make any refund or credit your account for or with respect to any payments which you have previously made for or in connection with those Big Murphy’s Goods or related Big Murphy’s Services.

 

  1. Promotions

 

Big Murphy’s, at its sole discretion, may from time to time, make special offers or promotions (“Promotions’) available to some but not all Customers, or to prospective Customers. Promotions, which we may from time to time offer to our Customers may not be the same and different Customers may be offered different Promotions. Furthermore, prospective Customers may also be offered different Promotions. No Promotion, unless and then only to the extent expressly made to you specifically, shall have any bearing whatsoever on your Account, these Terms or your relationship with Big Murphy’s. Any promotional coupon, which we may utilize in connection with a Promotion is applied at the discretion of Big Murphy’s, and while Big Murphy’s may in connection with a Promotion reduce the cost of certain Big Murphy’s Goods, if any, subject to such Promotion, based on an amount or discount value, stated by us in the Promotion, all other fees and charges for or in connection with Big Murphy’s Services and Big Murphy’s Goods, as well as, all shipping and handling (if applicable), and sales tax will still apply and be due to and payable to Big Murphy’s.

 

  1. Gift Cards and Certificates

 

Big Murphy’s at its option may through the Site issue gift cards (“Gift Cards”) or electronic gift certificates (“E-Gift Certificates”). In some cases, Gift Cards may be available for purchase through the Site, which Gift Cards may be shipped or mailed in accordance with Big Murphy’s shipping policies set forth in these Terms. In other cases, Big Murphy’s may issue E-Gift Certificates by e-mail or other electronic means designed by Big Murphy’s from time to time. All sales of such Gift Cards and E-Gift Certificates are final. Gift Cards and E-Gift Certificates should be treated as cash. Gift Cards and E-Gift Certificates cannot be exchanged or refunded for any reason. Gift Cards and E-Gift Certificates may be applied toward purchase of Big Murphy’s Goods and Big Murphy’s Services, where applicable, however they cannot be used to purchase other gift cards or e-gift certificates. Gift Cards and E-Gift Certificates may be used to pay for Big Murphy’s Goods and Big Murphy’s Services through Customer Features we from time to time make available for such purposes on the Site.

 

  1. User Conduct

 

You understand and agree that you alone are responsible, at your sole cost and expense, for compliance with any and all Laws that may apply to your use of the Site or any feature thereof. In connection with your use of the Site, you must not, and you agree that you shall never do or attempt to do any of the following:

 

  1. violate any applicable Law;
  2. use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other features or services contained in or comprising the Site;
  3. access or use the Site or any part thereof to use, expose, or allow to be used or exposed, any Big Murphy’s Content in any way that is inconsistent with the Big Murphy’s Privacy Notice or these Terms; or which in any way otherwise violates any rights of any of Big Murphy’s Customers or any other person or entity;
  4. use the Site or any part thereof or any feature or functionality accessed on or through the Site for any commercial or other purposes that are not expressly permitted by these Terms;
  5. copy, store or otherwise access or use any information contained on or accessed through the Site for purposes not expressly permitted by these Terms;
  6. infringe the rights of any person or entity, including without limitation, any intellectual property, privacy, publicity or contractual rights;
  7. interfere with or damage the Site, or any part thereof or any feature or functionality accessed on or through the Site - whether through the use of viruses, cancel bots, Trojans, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or otherwise;
  8. use the Site, or any part thereof or any feature or functionality accessed on or through the Site to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
  9. use the Site, or any part thereof or any feature or functionality accessed on or through the Site for or in connection with the distribution of unsolicited commercial email (“spam”);
  10. stalk, harass, or bully any other user of the Site;
  11. register for more than one Account or register for an Account on behalf of an individual other than yourself;
  12. unless Big Murphy’s explicitly permits otherwise, request or book any Big Murphy’s Service;
  13. recruit or otherwise solicit any Customer to participate in a third party services or websites that are competitive to Big Murphy’s, without Big Murphy’s prior written approval;
  14. impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
  15. use automated scripts to collect information from or otherwise interact with the Site;
  16. post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, or rights of publicity or privacy, (ii) violates, or encourages any conduct that would violate, any applicable Law or regulation or would give rise to civil liability, (iii) is fraudulent, false, misleading or deceptive, (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (vi) is violent or threatening or promotes violence or actions that are threatening to any other person, or (vii) promotes illegal or harmful activities or substances;
  17. systematically retrieve data or other content from the Site to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
  18. use, display, mirror or frame the Site, or any individual element within or comprising any part or feature of the Site, Big Murphy’s name, any Big Murphy’s trademark, service mark, trade dress, logo or other proprietary source identifiers, any materials or information, or the layout and design of any page or form contained on a page of the Site;
  19. access, tamper with, or use non-public areas of the Site, Big Murphy’s computer systems, or the technical delivery systems of Big Murphy’s providers;
  20. attempt to probe, scan, or test the vulnerability of any Big Murphy’s system or network or breach any security or authentication measures;
  21. avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Big Murphy’s or any of Big Murphy’s providers or any other third party (including another user) to protect the Site; or
  22. attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or any feature or functionality thereof.

 

Big Murphy’s at all times has the right to investigate and may prosecute violations of any of the foregoing to the fullest extent of the Law.

 

Big Murphy’s may access, preserve and disclose any of your information if we are required to do so by Law or enforceable legal obligation, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Big Murphy’s, (ii) to comply with a lawful and enforceable request by law enforcement, judicial body, or other public authorities, or in connection with a legal obligation, or other enforceable legal process (for example, court order, subpoena, warrant, etc.), (iii) enforce or administer our agreements with users (iv) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (v) protect the rights, property or safety of Big Murphy’s, its users, or members of the public. You acknowledge that Big Murphy’s has no obligation to monitor your access to or use of the Site but has the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the lawful and enforceable order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Big Murphy’s reserves the right, at any time and without prior notice, to remove or disable access to any materials that Big Murphy’s, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site.

 

  1. Intellectual Property and Customer License Agreement

 

  1. General Intellectual Property Provisions

 

The Site is protected by copyright, trademark, and other Laws of the United States and foreign countries. You acknowledge and agree that the Site and Big Murphy’s Content, including all associated Intellectual Property rights, are the exclusive property of Big Murphy’s and its licensors (hereinafter “Big Murphy’s Intellectual Property”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Collective Content. All trademarks, trade names, and source identifiers of Big Murphy’s used on or in connection with the Site are trademarks or registered trademarks of Big Murphy’s. Trademarks, trade names, and any other source identifiers of third parties used on or in connection with the Site are used for identification purposes only and may be the property of their respective owners.

 

Nothing in these Terms grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance, to any Customer or any other person of any right, title or interest in or to any of Big Murphy’s Intellectual Property therein, including but not limited to any trademark, trade name, service mark or other proprietary identifying symbols used by us from time to time on or in connection with the Site, or any feature or functionality thereof. No Customer or other person may use any of Big Murphy’s Intellectual Property without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion. All goodwill arising from or incident to any use of Big Murphy’s Intellectual Property shall inure exclusively to us or our third party licensors as applicable.

 

  1. Non-Assertion

 

You agree you shall not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property infringement claim with respect to the Site.

 

  1. Notice of Infringement

 

Big Murphy’s respects Intellectual Property Laws and expects all Customers to do the same. It is Big Murphy’s policy to terminate in appropriate circumstances the Accounts of Customers who repeatedly infringe or are believed to be repeatedly infringing the rights of Intellectual Property owners. Claims of trademark, copyright, or patent infringement or any other alleged Intellectual Property violations should be sent to Big Murphy’s designated agent. Please review Big Murphy’s Intellectual Property Policy, found at Error! Hyperlink reference not valid. for further information.

 

  1. Big Murphy’s Content License

 

Big Murphy’s grants Customers a limited, non-exclusive, non-transferable license, to (i) access and view any Big Murphy’s Content solely for your personal and non-commercial purposes and (ii) access and view any Customer Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. You agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise to Big Murphy’s Intellectual Property, except for the licenses and rights expressly granted in these Terms.

 

  1. Customer Content License

 

Big Murphy’s may, in our sole discretion, permit you to post, upload, publish, submit or transmit Customer Content. By making available any Customer Content on or through the Site, you hereby grant to Big Murphy’s a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Customer Content on, through, by means of, or to promote or market the Site. Big Murphy’s does not claim any ownership rights in any such Customer Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Customer Content.

 

You acknowledge and agree that you are solely responsible for all Customer Content that you make available through the Site. Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of all Customer Content that you make available through the Site or you have all rights, licenses, consents and releases that are necessary to grant to Big Murphy’s the rights in such Customer Content, as contemplated under these Terms, and (ii) neither the Customer Content nor your posting, uploading, publication, submission or transmittal of the Customer Content or Big Murphy’s use of the Customer Content (or any portion thereof) on, through or by means of the Site will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary rights or Intellectual Property, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

 

  1. Suggestions

 

If you provide any suggested improvement(s) to the Site or any feature or functionality thereof (each a “Suggestion” and collectively “Suggestions”) to Big Murphy’s, we will own all right, title and interest (including any Intellectual Property rights) in and to any Suggestion even if the person making the Suggestion has designated the Suggestion as confidential or proprietary. Big Murphy’s shall be entitled to use and exploit any Suggestion without restriction. You must, and hereby do, irrevocably assign to Big Murphy’s all right, title and interest (including all Intellectual Property rights) in and to all Suggestions (if any) and agree to provide us or our designees with any assistance we may or they may reasonably request or require from time to time to further document, perfect and maintain our rights in any Suggestion.

 

  1. Third Party Websites, Applications, Links, and Resources

 

The Site may contain links to or otherwise interface or connect with third party websites or resources, for example SNS (defined above), Shopify, Paypal or other like payment processors. You acknowledge and agree that Big Murphy’s is not responsible or liable for (i) the availability or accuracy of such websites or resources or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Big Murphy’s of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources. 

 

  1. Limitation of Liability

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, OR ANY FEATURE OR SERVICE ACCESSED OR OFFERED ON OR THROUGH THE SITE INCLUDING YOUR REQUEST OR BOOKING OF ANY BIG MURPHY’S SERVICES VIA THE SITE AND ANY CONTACT YOU HAVE WITH OTHER CUSTOMERS OF BIG MURPHY’S, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION VII(E), ALL BIG MURPHY’S GOODS ARE WARRANTED AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER ORDINARY USE FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF RECEIPT. WITH RESPECT TO BIG MURPHY’S GOODS, BIG MURPHY’S SERVICES, CUSTOMER FEATURES, AND THE ENTIRETY OF THE SITE, BIG MURPHY’S EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BIG MURPHY’S NOR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS OR AFFILIATES, SHALL BE LIABLE TO ANY CUSTOMER, ANY USER, ANY GUESTS OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR FOR ANY DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS IN CONNECTION WITH THE SITE, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SYSTEM OR ANY SERVICE OR ANY PART THEREOF, (II) THE PROVISION OF OR FAILURE TO PROVIDE, OR ANY INTERRUPTION OF, ANY BIG MURPHY’S SERVICE OR ANY OTHER SERVICE, (III) ANY INFORMATION, SOFTWARE, PRODUCT, SERVICE, DATA, FILE, CONTENT, OR MATERIALS STORED ON, OBTAINED THROUGH, UPLOADED TO OR DOWNLOADED FROM THE SYSTEM OR ANY SERVICE, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING, (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR CONTENT, OR (V) ANY ACCESS TO OR USE OF, OR ANY INABILITY TO ACCESS OR USE ANY CONTENT OR MATERIALS.

 

IN THE EVENT THAT NOTWITHSTANDING THE PROVISIONS OF THE FOREGOING PARAGRAPHS OF THIS SECTION, WE (OR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES OR THIRD PARTY LICENSORS OR SUPPLIERS) ARE FOUND LIABLE TO ANY CUSTOMER, USER OR GUEST OR OTHERWISE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THE AGGREGATE AMOUNT OF ALL SUCH LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO US BY CUSTOMER OR YOU (AS APPLICABLE) FOR AND WITH RESPECT TO THE PARTICULAR BIG MURPHY’S SERVICES THAT GIVE RISE TO SUCH CLAIM IN WHICH THE CAUSE OF ACTION ACCRUED. 

 

THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

  1. Indemnification

 

You agree and must at all times indemnify, defend and hold Big Murphy’s and its third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors, managers and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) any Customer or other person’s use of or access to the Site in a manner not authorized by these Terms, or in violation of any applicable laws, (ii) Content including any claim involving infringement or misappropriation of third party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of Customer Content, (iii) any breach by Customer or any other person of any term or condition of these Terms, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of Customer or any other person using or accessing the Site.

 

We will promptly notify you of any claim which we become aware of and which we believe to be subject to indemnification under this Section; provided that our failure to promptly notify you shall not affect your indemnification obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim(s) with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you (nor any Person acting on your behalf) may enter into any settlement without Big Murphy’s prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim.

 

  1. Dispute Resolution

 

  1. Arbitration

 

If you reside in the United States, you and Big Murphy’s agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights. You acknowledge and agree that you and Big Murphy’s are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding. Further, unless both you and Big Murphy’s otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.

 

  1. Rules and Governing Law

 

This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The AAA Rules are available at www.adr.org/arb_med. The Federal Arbitration Act will govern the interpretation and enforcement of this section.

 

 

  1. Process

 

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Texas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

 

  1. Location and Procedure

 

Unless you and Big Murphy’s otherwise agree, the arbitration will be conducted in New York, United States. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Big Murphy’s submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

 

  1. Decision

 

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

 

  1. Fees

 

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

 

  1. Changes

 

Notwithstanding the provisions of the “Modification” section above, if Big Murphy’s changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Big Murphy’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Big Murphy’s in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

 

 

 

  1. General Provisions

 

  1. General Rules of Construction 

 

For purposes of these Terms: (i) whenever the context requires, the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include the masculine and feminine genders. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of these Terms. As used in these Terms: (i) the words “hereof”, “hereunder”, “herein” and words of similar import refer to these Terms as a whole and not to any particular provision of these Terms; (ii) the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (iii) except as otherwise expressly indicated, all references in these Terms to “Sections”, “Subsections”, “Paragraphs”, “Schedules”, “Exhibits” are intended to refer to sections, subsections or paragraphs of these Terms; and (iv) the word “or” means “and/or”. 

 

  1. Notices

 

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Big Murphy’s (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

 

  1. Controlling Law and Jurisdiction

 

These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Florida and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Stuart, Florida or a United States District Court, Southern District of New York located in Stuart, Florida for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision.

 

  1. Severability

 

If any provision of these Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of these Terms, and the application of such provision to persons, entities, or circumstances other than those with respect to which it is held invalid, shall not be affected.

 

  1. Waiver and Enforceability

 

The failure of Big Murphy’s to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Big Murphy’s. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

  1. Third Party Beneficiary

 

These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.

 

  1. Term and Termination

 

These Terms are effective upon your creation of an Account, as amended by any modifications made by Big Murphy’s as outlined at the start of these Terms. You may discontinue your use of Customer Features or your Account at any time, for any reason. We may suspend or deactivate your Account, or revoke your permission to access the Site or any or all Customer Features, at any time, for any reason, with or without notice to you. We reserve the right to refuse access to the Site or any Customer Feature to any Customer for any reason not prohibited by applicable Law. Either party may terminate the Terms for any reason upon written notice to the other party.

 

  1. Survival

 

Sections I (Definitions), II (Explanation of Big Murphy’s Services and Big Murphy’s Goods), III (Acknowledgments and Disclaimers), VII (Orders, Returns, and Other Financial Terms), IX (Intellectual Property and Customer License Agreement), XI (Limitation of Liability), XII (Indemnification), XIII (Dispute Resolution), and XIV (General Provisions) shall survive termination of these Terms.

 

  1. Entire Agreement

 

These Terms constitute the entire and exclusive understanding and agreement between Big Murphy’s and you regarding the Site, ANY Big Murphy’s Services rendered via the Site, any Big Murphy’s Goods, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Big Murphy’s and you regarding the Big Murphy’s Services, the Site or any Big Murphy’s Goods.

 

  1. Assignment

 

These Terms are neither assignable, transferrable nor delegable by you whether by operation of Law or otherwise. Any attempt by you to assign, transfer, or delegate any of these Terms, will be null and void and of no effect. Big Murphy’s may assign, transfer or delegate these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the respective parties, their successors and permitted assigns.

 

  1. How to Contact Us

 

If you have any questions regarding this Policy or our privacy practices, you can contact us at:

 

 

Big Murphy’s

Attn: Nathan Minnehan

2336 SE Ocean Blvd #222

STUART FL, 34996

USA

Toll-free:  (585) 703-4506

Or by email at: sales@bigmurphys.com