Terms and Conditions of Use - Please Read Carefully
We are pleased to welcome you to www.biggayicecream.com (the “Website” or the “Site”), operated by Davenport, Turnblad & Fishpaw LLC a Big Gay Ice Cream “BGIC” affiliate. These Terms and Conditions of Use (“Terms of Use” or “Terms”) govern your access to and use of the Website. In these Terms of Use, the words “you” and “your” refer to each customer, user, site guest or visitor and “we”, “us” and “our” refer to BGIC, its subsidiaries, successors in interest and assigns, and the Website.
Please read these terms of use carefully before using this Website and make sure you understand them. These Terms of Use, including all documents referenced herein, represent the entire understanding and agreement between BGIC and you regarding your use of this Website and supersede any prior statements or representations. This Website’s Privacy Policy is incorporated into these Term of Use by reference and is made a part hereof. Please contact privacy@biggayicecream.com for updates to BGIC policy information. You are not authorized to use this Website if you do not agree to be legally bound by any or all of these Terms and Conditions.
Consent to Terms and Conditions
By accessing or using the Website, you agree that you have read and understood the Terms of Use and agree that you will comply with same for as long as you use the Website. Your access of the Website signifies your acceptance of these Terms of Use and your acknowledgement that you are legally bound by them.
Use of this Website
Access to, distribution and/or use of this Website is subject to all applicable laws and regulations. To the extent that access to, distribution and/or use of this Website would be deemed illegal by applicable law, such access, distribution and/or use is prohibited. Each time you visit any area on the Website and/or register for any interactive functionality of the Website, you are deemed to have confirmed your acceptance to these Terms of Use and the Website’s Privacy Policy. If you do not agree to abide by these Terms of Use and the Privacy Policy, please do not use this Website. By having accepted these Terms of Use, and/or entering and participating in any activities offered on this Website, you affirm, represent and warrant that: (a) you are 14 years of age or older, unless you are purchasing items from our online store, in which case, you are 18 years of age or older and a reside in the United States. (b) all information you submit via the Website shall be truthful and accurate (and you will maintain the accuracy of such information); (c) you will abide by these Terms of Use; and (d) your use of the Website shall not otherwise violate any applicable law, rule or regulation.
Changes to the Terms of Use
From time to time, these Terms of Use may change. BGIC reserves the right to modify these Terms of Use without prior individual notice. We will post changes to the Terms of Use on this Website and changes will become effective once posted. Your continued access to or use of the Website will be deemed as acceptance by you of the then-current Terms of Use. Please review these Terms of Use often so that you will remain abreast of our current policies.
You can tell when the Terms of Use were last modified by checking the “last updated” date that appears at the top.
Description of Services
BGIC provides Site visitors with information about BGIC, its products, promotions and events, enables you to subscribe to BGIC’s newsletter, enables you to sign up for and link to other social media platforms, and enables you to visit BGIC’s online store (the “Services”). BGIC provides an online retail store featuring products that Website users may purchase directly from the Website.
Ownership of the Website and Services
This Website and the Services provided by BGIC on the Website are owned or licensed by BGIC. BGIC has the right to use, and/or owns or controls the materials on this Website, including but not limited to, images, logos and trademarks (collectively referred to as the "Materials"). BGIC hereby grants you permission to use the Website as set forth in these Terms of Use but nothing in these Terms shall be construed to confer upon you any license of or under any of BGIC’s intellectual property rights in the Materials.
You acknowledge that you have no ownership rights in the Materials. You further understand and agree that you will not use any trademarks, trade names, services marks, copyrights or logos owned or controlled by BGIC (collectively, “BGIC’s intellectual property”) in any manner except with BGIC’s consent.
Except as otherwise indicated on this Website, copying, reproducing, uploading, downloading, transmitting or any other use of this Website or of any of the Materials, in whole or part, without the express permission of BGIC, is prohibited. Any unauthorized access to, use or copying of this Website and/or the Materials may subject you to liability under applicable law.
Provision of the Services by BGIC
BGIC seeks to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which BGIC provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that BGIC may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally, at BGIC’s sole discretion.
Disputes with BGIC
If you have a dispute with BGIC relating to the Website or the Services, please contact us at info@biggayicecream.com and we will attempt to resolve the dispute with you. If we cannot resolve our dispute, then the Terms of Use will govern any legal dispute involving our Services.
Purchasing from BGIC
By purchasing items from the Website, you are agreeing to our Terms of Use, including those governing your purchases from and payments to BGIC. If you violate the Terms of Use, we may cancel your account. When you make purchases from the Website, you will be required to click a box to signify your acceptance of the Terms of Use, including but not limited to the Terms of Use governing your purchases on the Website. Additionally, when you make purchases from the Website, you may be asked to provide your e-mail address. If you provide your e-mail address, BGIC may maintain your e-mail address on its e-mail list. By providing your e-mail address, you expressly agree that BGIC is permitted to store, use to communicate and maintain your e-mail address. If you do not want BGIC to maintain your e-mail address, you can opt out by contacting BGIC at privacy@biggayicecream.com and requesting that your e-mail address be deleted from BGIC’s e-mail list.
All payment transactions entered into on the Site are processed by PayPal. You will provide your payment information to PayPal, and PayPal’s Privacy Policy and Terms and Conditions of Use will govern use and disclosure of that information. We encourage you to read carefully PayPal’s Privacy Policy and Terms and Conditions of Use, which can be found at www.paypal.com. BGIC does not use or store your financial information.
Delivery
At the time you place an order on through the Website, you will be provided with delivery and shipping options. You will be able to select from those options and the fees applicable to each will be disclosed at time of purchase. At the time of purchase, you will be asked to provide shipping information to enable BGIC to ship your items to the address(es) you select. Shipping charges are added to the price of the item(s) you are purchasing at the point of purchase. At the point of purchase, you will be able to select the address you want your item shipped to and the shipping method you want used.
Cancellations and Returns
You will have 30 calendar days from the date you receive an item to return or exchange the item. In order to be eligible for a return or exchange, your item must be in the same condition as when you received it, and should be in the original packaging. You will need to provide a copy of your paid invoice or other proof of purchase in order to be eligible for a refund. If your return is approved, you will receive You will receive a credit within 7-10 days of approval of your refund, depending on the policies of your credit card issuer.
Use in the United States
This Website is intended for use within the United States, and we control and operate the Website from the United States. We make no representation that materials on the Website are appropriate or available for use outside the United States. If you choose to access this Website from outside the United States, you do so at your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Links
The Website may contain links to other applications, websites and social media features that are not controlled and/or maintained by BGIC. Access to and use of such other websites is at your own risk and subject to any Terms of Use and Privacy Policies which govern such websites. By providing such links, BGIC shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information, promotions and/or products found on such websites. BGIC is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites or for any damages that may result therefrom. Copyrights in the materials or information on the linked websites are owned by other organizations. Moreover, such other websites may have privacy policies or terms of use that differ from those of the Website and/or may provide their users with less security than the Website. Accordingly, you should review the privacy policies and terms of use on such other sites before using them.
Your Responsibilities
You do not have to have an account to visit and browse the Website.
You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a backup of all data and/or your equipment. You agree that you will not upload any spyware or malicious software to the Website.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Site and the Services.
User Conduct
In connection with your use of the Website and the Services, you may not and you agree that you will not:
• violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and tax regulations;
• 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 services contained in the Website, Services or Materials;
• use the Website, Services or Materials for any commercial or other purposes that are not expressly permitted by these Terms of Use or in a manner that falsely implies BGIC’s endorsement, partnership or otherwise misleads others as to your affiliation with BGIC;
• dilute, tarnish or otherwise harm the BGIC brand in any way, including through unauthorized use of the Materials, registering and/or using BGIC or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to BGIC’s domains, trademarks, taglines, promotional campaigns or other Materials;
• copy, store or otherwise access or use any information contained on the Website, Services or Materials for purposes not expressly permitted by these Terms of Use;
• infringe the rights of BGIC or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right;
• interfere with or damage our Website or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, 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;
• impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
BGIC may elect to terminate your access to the Website immediately and without notice to you in the event that you violate any of these rules of conduct.
Limitation of Liability and Warranty and Use Disclaimer
BGIC endeavors to make sure that all information and data it originates on the Website is accurate. However, BGIC is not responsible for any damages or loss related to the use of this Website.
THIS WEBSITE, ALL CONTENT AND MATERIAL CONTAINED ON THIS WEBSITE, ALL SERVICES PROVIDED ON THIS WEBSITE AND ALL LINKS OR OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED "AS IS" AND TO THE FULLEST EXTENT PERMITTED AT LAW WITHOUT GUARANTEES, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (BY STATUTE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITE AND/OR ITS FEATURES AND FUNCTIONS WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED. THERE ARE NO GUARANTEES, REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS REGARDING TITLE, SECURITY, ACCURACY, ACCEPTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITE OR THE MATERIALS AND CONTENT CONTAINED HEREON. ANY INFORMATION CONTAINED WITHIN OR ON THIS WEBISTE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING. BGIC RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THIS WEBISTE WITHOUT NOTICE AT ANY TIME AND TO THE FULLEST EXTENT PERMITTED AT LAW, AND ACCEPTS NO RESPONSIBILITY FOR THE WEBSITE OR SERVICES NOT BEING AVAILABLE AT ALL TIMES.
SUBJECT TO THE SAVINGS CLAUSE, NEITHER BGIC (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES), NOR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THIS WEBSITE, SHALL BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL AND/OR ANY OTHER DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS APPLICATION OR FROM ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN WHICH CASE THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY LAW, BGIC (A) MAKES NO GUARANTEES, WARRANTIES, REPRESENTATIONS OR CONDITIONS ABOUT THE ACCURACY OR SUITABILITY FOR ANY PURPOSE OF ANY MATERIALS ON OR OTHER CONTENT OF THE WEBSITE OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE AND, (B) ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO, REPRODUCTION, DISTRIBUTION AND/OR USE OF THIS WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO, REPRODUCTION, DISTRIBUTION OR USE OF BGIC’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE WEBSITE AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITE.
BGIC is not responsible for any damages or loss related to your reliance on any outdated version of these Terms of Use, including, but not limited, to any outdated version of our Privacy Policy.
Certain jurisdictions prohibit the limitation of liability for certain types of damages or prohibit waivers against future fraud, and accordingly, such limitations or waivers may not apply to you. In such jurisdictions, BGIC’s liability is limited to the greatest extent allowable under applicable law.
Indemnity
Unless prohibited by law, you agree to indemnify BGIC, and each of its parent, subsidiary and affiliated entities (collectively, “BGIC Affiliates”), furnishing entities, officers, directors, members, employees, representatives, licensees, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) suffered, incurred or brought against any one or more of them by a third party relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms of Use; (ii) any content posted on the Website by you or through your account; (iii) your use of the Website; and/or (iv) any violation of these Terms of Use by you. You agree that your representations and warranties, and your obligation to indemnify BGIC, shall survive beyond any term for which these Terms of Use are in effect.
Electronic Communications
When you communicate with BGIC electronically, via email or otherwise, you consent to receive electronic communications from BGIC. You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by BGIC satisfy any legal requirement that such communication be in writing. BGIC encourages you to retain your own copies of relevant information.
With respect to all communications you make to BGIC directly and/or through the Website, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and BGIC shall have no obligation to protect your communications from disclosure; (ii) BGIC shall be free to reproduce, use, publish, display, disclose and distribute your communications to others without limitation and/or payment to you; and (iii) BGIC shall be free to use without limitation and/or payment to you, any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information to the fullest extent permitted by law.
Acquisition of Business
In the event that BGIC and/or any of its affiliated entities is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, you hereby acknowledge and agree that this Website, all data collected on this Website, and all rights of BGIC and its affiliated entities hereunder may be included in the assets of, and/or transferred pursuant to, such transaction. If that occurs, BGIC will post a notice to such effect on this Website.
Contact Us
If you have any questions concerning this Website or any of the policies set forth in these Terms of Use, please contact us at info@biggayicecream.com.
Copyright Infringement - Notice and Take-Down Policy
BGIC values intellectual property and respects the intellectual property rights of others, and will remove materials on its Website that infringe the copyrights of others. If you believe that your copyrighted material has been infringed by material contained on this Website, then pursuant to Title 17, United States Code, § 512, you may notify BGIC Designated Agent in writing as follows:
Name of Designated Agent: Copyright Administrator Douglas Quint
Address: Douglas Quint c/o Big Gay Ice Cream
61 Grove Street New York, NY 10014 USA
Electronic Mail Address: copyright@biggayicecream.com
In your notice, you must include the following:
i. a physical or electronic signature of the owner of an exclusive right that is being infringed or of a person authorized to act on behalf of such owner;
ii. identification of the copyrighted work(s) that is (are) allegedly being infringed;
iii. identification of the materials that are causing the infringement and that are to be removed, along with sufficient information to allow BGIC to locate such materials;
iv. contact information (i.e., name, address, email address) sufficient to enable BGIC to contact you;
v. a statement to the effect that you have a good faith belief that the complained of use of the material was not authorized by the owner of the copyright, its agent or the law; and
vi. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly being infringed.
U.S. Export Controls
Software from or related to this Website (the “Software”) may be subject to United States export controls or the export controls of other countries from where you access the Website. No Software may be downloaded from the Website or otherwise exported or re-exported in violation of U.S. or other countries' export laws, as applicable. Downloading or using the Software is at your sole risk.
Disputes and Governing Law
Use of this Website and these Terms of Use shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions. In the event that any portion of these Terms of Use are deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, unless narrowed by construction, such portion of these Terms of Use shall, for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable portion had been more narrowly constructed so as not to be invalid, prohibited or unenforceable (or if such provision cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify such portion of these Terms of Use to the extent necessary to make such portion of these Terms of Use enforceable in such jurisdiction, and such portion shall then be applicable in such modified form in such jurisdiction). If, notwithstanding the foregoing, any such portion of these Terms of Use would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such portion, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions set forth in these Terms of Use. No narrowed construction, modification or invalidation of any portion of the Terms of Use shall affect the construction, validity or enforceability of such portion in any other jurisdiction. No waiver by BGIC of any term or condition of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and BGIC’s failure to assert any right or demand compliance with any provision of these Terms of Use shall not be deemed to constitute a waiver of any such right or provision.
Except where prohibited by law, as a condition of you accessing and/or using this Website, you agree that, to the fullest extent permitted by law (1) any and all disputes and causes of action arising out of or connected with this Website shall be resolved individually (without resort to any form of class action) and exclusively by final and binding arbitration in New York within one year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association; and (2) judgment upon such arbitration award may be entered in any court having jurisdiction. Unless prohibited by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.
The rules governing arbitration are different than those in court. Arbitration does not involve a judge or jury and review is limited, but an arbitrator can award the same damages as a court. Except as may otherwise be provided in AAA’s Consumer Due Process Protocol that allows consumers to file certain claims in small claims court, you understand that by accepting these Terms and Conditions, you are giving up your right to a trial in court, either with or without a jury.
To the fullest extent permitted at law, under no circumstances will you be permitted to obtain an award for, and by accessing and/or using the Website you waive all rights to claim, punitive, incidental, consequential or any other indirect damages (including multiplied and/or increased damages and/or attorneys' fees and court costs) for any dispute or cause of action that you may have that relates in whole or part to this Website, and/or the Materials on or other content of the Website. Notwithstanding anything to the contrary set forth in these Terms of Use or otherwise, your recovery with respect to any and all claims, judgments, and awards for which you are entitled shall, unless prohibited by law, be limited to your actual out-of-pocket costs incurred, excluding attorneys’ fees and court costs.
Notwithstanding anything to the contrary set forth in these Terms of Use, BGIC may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York and/or in any other court that has jurisdiction, in the event
that BGIC believes that there is a violation, or a threatened violation, of any of BGIC’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.
You expressly agree that you have read, understood and agree to the Terms of Use, including but not limited to the Terms governing Disputes and Governing Law.