The website located at www.[earthhero].com (the “Site”) is provided by EarthHero, LLC. (“EarthHero”, “us”, “our”, and “we”) to enable providers (“Sellers”) of sustainable products (“Products”) can transact with potential customers (“Buyers”) by using the services provided at the Site (“Services”).
Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features.
All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
In order to use certain features of the Site (e.g., to use the Services), you must create an account or log in using your Facebook account. If you use a 3rd party log in, you are responsible for maintaining the confidentiality of your Facebook account login information and are fully responsible for all activities that occur under your Account, including any transactions into which a person enters using your Facebook login.
Subject to the terms of this Agreement, EarthHero grants you a non-transferable, non-exclusive license to use the Site and Services for your personal, noncommercial use, unless you are a Seller, in which case you may also use the Services to sell your Products once you agree to the EarthHero Seller Terms of Service. The rights granted to you in this Agreement are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (iii) you shall not access the Site or Services in order to build a similar or competitive service; and (iv) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained.
EarthHero reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that EarthHero will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services.
EarthHero will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
Excluding your Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by EarthHero or EarthHero’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. EarthHero and its suppliers reserve all rights not granted in this Agreement.
“Content” means any and all information and content that you submit via the Site or Services (e.g., content in a Buyer’s profile or postings or Product information posted by a Seller). You are solely responsible for your Content. You assume all risks associated with use of your Content. You represent and warrant that your Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your Content is in any way provided, sponsored or endorsed by EarthHero. Because you alone are responsible for your Content (and not EarthHero), you may expose yourself to liability if, for example, your Content violates the Acceptable Use Policy. EarthHero is not obligated to backup any Content and Content may be deleted at any time. You are solely responsible for creating backup copies of your Content if you desire.
You grant, and you represent and warrant that you have the right to grant, to EarthHero an irrevocable, nonexclusive, royalty-free, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your Content, and to grant sublicenses of the foregoing, solely for the purposes of including your Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Content.
4. ACCEPTABLE USE POLICY
The following sets forth EarthHero’s “Acceptable Use Policy”:
You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
In addition, you agree not to use the Site or Services to: (i) engage in any deceptive, misleading, or unfair conduct, including failing to ship items as promised, or providing broke, damaged, defective, or misdescribed items, or otherwise deceiving or misleading another member; (ii) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (iii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise, including making any offer for money or compensation via email; (iv) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (v) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (vi) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (vii) harass or interfere with another user’s use and enjoyment of the Site or Services; or (viii) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
We reserve the right (but have no obligation) to review any Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
If you provide EarthHero any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to EarthHero all rights in the Feedback and agree that EarthHero shall have the right to use such Feedback and related information in any manner it deems appropriate. EarthHero will treat any Feedback you provide to EarthHero as non-confidential and non-proprietary. You agree that you will not submit to EarthHero any information or ideas that you consider to be confidential or proprietary.
You agree to indemnify and hold EarthHero (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your Content, (c) your violation of this Agreement; (d) your violation of applicable laws or regulations, or (e) your participation in any transaction. EarthHero reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of EarthHero. EarthHero will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. OTHER USERS.
Because we do not control Content, you acknowledge and agree that we are not responsible for any Content and we make no guarantees regarding the accuracy, suitability, or quality of any Content, and we assume no responsibility for any Content. Your interactions with other persons that use the Site or Services (each a “User”) are solely between you and such User. You agree that EarthHero will not be responsible for any loss or damage incurred as the result of any such interactions, including in connection with any transaction. If there is a dispute between you and any other User, we are under no obligation to become involved.
You hereby release and forever discharge EarthHero (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or exchange of goods with, or act or omission of, other Site or Service users or your participation in any transaction, including any claim for personal injury, property damage, or death. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SITE OR SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (III) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE SITE MERELY PROVIDES A NEUTRAL NETWORK THROUGH WHICH USERS CAN INTERACT. AS SUCH, YOU AGREE THAT EARTHHERO HAS ABSOLUTELY NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSACTIONS. IN ADDITION, YOU ACKNOWLEDGE THAT AS WITH ALL TRANSACTIONS, IF YOU ARE A BUYER YOU ARE SOLELY RESPONSIBLE FOR INSPECTING ALL GOODS AND PRODUCTS BEFORE USING THEM AND YOU ASSUME ALL RISK OF USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
EACH USER ENTERS INTO A TRANSACTION AT HIS OR HER OWN RISK AND FOREVER WAIVES, DISCHARGES, AND RELEASES COMPANY FROM ANY CLAIM RELATED TO OR ARISING OUT OF ANY TRANSACTION.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your EarthHero Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your EarthHero Account and right to access and use the Site and Services will terminate immediately.
9. COPYRIGHT POLICY.
EarthHero respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and e-mail address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
To submit a DMCA Takedown Notice, click here
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11. Dispute Resolution.
If a dispute arises between you and EarthHero, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and EarthHero agree that we will resolve any claim or controversy at law or equity that arises out of these Terms or our services in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly at firstname.lastname@example.org to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
These Terms shall be governed in all respects by the laws of the State of Colorado as they apply to agreements entered into and to be performed entirely within California between Colorado residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against EarthHero must be resolved exclusively by a state or federal court located in Denver, Colorado, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Denver, Colorado for the purpose of litigating all such claims or disputes.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims you bring against EarthHero must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to the Legal Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Legal Disputes Section, EarthHero may recover attorneys’ fees and costs up to $1000, provided that EarthHero has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without EarthHero’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
Copyright © 2016, EarthHero, LLC.. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
EARTHHERO SELLER TERMS
BY REGISTERING AS A SELLER ON THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY CHANGES TO THESE TERMS AND TO OUR ADDITIONAL POLICIES FOR AS LONG AS YOU USE THE PLATFORM OR SELLER SERVICES (AS DEFINED BELOW).
To use the Platform, you need to register for an account (“Account”). Your Account is subject to the terms of the [www.earthhero.com] Terms of Service. You are responsible for maintaining the confidentiality of your password and for all activity that takes place using your password and you release EarthHero from all liability for any such activities. EarthHero reserves the right to terminate your Account or otherwise deny you access in its sole discretion without notice and without liability.
3. Seller requirements.
The Platform enables you to promote, market or advertise Products via the Platform and to use EarthHero’s fulfillment services (collectively the “Seller Services”) to sell, distribute, and fulfill Products to Buyers. In addition, the Platform provides payment processing services to collect payments from Buyers “Processing Services”).
If you have selected an option where EarthHero will drop ship the Products on your behalf, then once we pay the Wholesale Price for a Product to you, we are the legal owners of that Product. If you have selected an option to use the Platform and the Processing Services to sell your Products, but you will physically ship the Product to the Buyer, then EarthHero does not take ownership of any Products nor are we the merchant of record for that transaction and you remain solely responsible for fulfilling and delivering all orders for your Products to Buyers in a timely manner.
All Products are subject to the Uniform Commercial Code § 2-401(2) with respect to the transfer of ownership of goods between the Buyer and you, unless the Buyer and you agree otherwise.
You agree to provide to EarthHero with accurate product data in the formats specified by EarthHero on the Platform, high resolution, non-altered photos of your Products.
You agree that you shall accurately state the shipping and delivery times for any Products that you will deliver directly to Buyers and shall comply with such shipping times. You shall use best efforts to monitor your inventory in real-time and to provide Buyers and EarthHero with accurate real-time inventory information.
You shall provide customer service directly to all Buyers of your Products and shall respond to all customer inquiries using best industry practices. At a minimum, you will provide valid email addresses to which Buyers can send inquiries and receive a non-automated reply by end of the following business day.
If use third party advertisers and affiliate links (“Affiliates”) to promote your Products, you agree that, as between you and EarthHero, you are responsible for all statements or messages communicated by an Affiliate and you will ensure that no statement made by an Affiliate on your behalf: (i) includes any false or deceptive statement or claim regarding your Product; or (ii) offers any incentives unless you intend to fulfill such incentives. EarthHero reserves the right to suspend your access to the Seller Services at any time if an Affiliate violates these restrictions.
You will notify EarthHero of any regulatory or legal complaints, or threats of such complaints, that You receive in connection with or in relation to a Product within two business days of Your receipt of such complaint. You shall assist EarthHero, at your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by EarthHero to respond to and/or resolve such complaints.
You will establish an appropriate return, replacement and/or cancellation policy for your Products (“Return Policy”). Your Return Policy must allow refunds or replacements for at least sixty (60) days after the date of purchase and will provide a prepaid shipping label. You will ensure your Return Policy is clearly and conspicuously posted for Buyers to review prior to purchasing your Products. EarthHero may alter or override your Return Policy if it is not appropriate for the Product(s), if the charged back sales) are excessive, or for any other reason EarthHero deems appropriate, in its sole discretion. EarthHero may also issue refunds for up to sixty (60) days as described below.
You will provide EarthHero with a sustainability statement and/or video from your Chief Executive Officer and a company mission statement (“Statements”) that EarthHero may publish on the Platform to help promote your brand and the environmental sustainability. You represent that the Statements will be accurate, truthful, up-to-date, and non-deceptive. You will be solely responsible for (and indemnify EarthHero against) all claims arising out of or related to the Statements or videos.
Products have both a retail and wholesale price. For Products that are drop shipped via EarthHero, EH will list the retail price for your Product and at the time of purchase by a Buyer, EarthHero purchases the Product from you at a wholesale price and immediately resells the Product to the customer for that retail price. The difference between the wholesale price and the retail price is the fee you pay for using the Platform (“Margin”). EarthHero charges the Buyer the applicable shipping and handling fee (“Shipping Fees”) at the time of purchase and retains all Shipping Fees. Once the Buyer has paid the Shipping Fees, EarthHero will email you shipping information of customer. Then you package your Product, print the label, stick it on your package, and ship the product. EarthHero’s standard shipping rates applies only in the 48 contiguous states of the United Sates. EarthHero is not responsible for any loss or damage.
EarthHero does not collect State sales tax unless you are located in Colorado and we are required to pay sales tax on our purchase from you by law. You represent and warrant that you will comply with applicable laws regarding sales taxes and be responsible for all sales taxes on sales of your Products that you ship directly to a Buyer (the “Taxes”). YOU ACKNOWLEDGE AND AGREE THAT ALL TRANSACTIONS TAKE PLACE BETWEEN EARTHHERO AND YOU WITH EARTHHERO AS PURCHASER AND YOU AS SELLER AND TAKE PLACE ENTIRELY IN COLORADO, USA.
Accounts with a balance exceeding $10.00 are eligible for once per calendar month. Payments are always sent thirty (30) days after the end of the calendar month period-end. Direct deposits may take 1-2 business days to reach your account, although many direct deposits are received on the same day that we send them.
If you choose to sell a Product in a currency other than U.S. dollars, an exchange rate is used to convert the purchase amount to U.S. dollars.
To participate in the Seller Services, you must have a taxpayer ID number of some kind linked to your account, which at a minimum must be a social security number. If you are utilizing a U.S. address but are a beneficial resident of a foreign country, you will instead need to provide a completed IRS W-8ben form instead.
5. RESPONSIBLE FEEDBACK
The Platform offers a unique experience both for you and for Buyers by facilitating communication about the sustainability and environmental and ecological characteristics of your Products (“Sustainability Feedback”).
You represent, warrant, and agree that all Sustainability Feedback provided by you will be accurate, truthful, current, and complete for each product and/or attributes of a product and/or your company and brand in its entirety.
Sustainability Feedback shall include, upon request by either a Buyer or EarthHero, accurate and complete information regarding at least the following applicable information:
Country of origin and/or state
% of virgin material
% of recycled material
% of renewable material
% of compostable material
% of up cycled material
% of organic material
Any known toxins
Any applicable Certifications
Any applicable charitable causes
Packaging composition and disposal characteristics:
Estimated life span
End of life instructions and restrictions
Additionally, you shall immediately notify EarthHero of any changes to the material of the Product.
6. USE OF THE PLATFORM.
When you use the Seller Services, you agree, acknowledge, represent and warrant that:
your Products, and any materials or statements used to promote, advertise, or market your Products will not make any unlicensed or unauthorized use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively “IP Rights”) of any entity or individual.
you will not promote, market, sell, or distribute via the Seller Services any Product that promotes violence, sexually explicit materials, illegal content, illegal activities, alcohol, tobacco, pseudo-pharmaceutical, prescription drugs, or discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age;
you will not promote, market, advertise, or sell any Products or services to children under the age of thirteen (13);
you will not defame any person;
you will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
you will not in any way copy the “look and feel” of any third party website, or otherwise imply that the promotion is in fact a third party website;
you will not violate any laws, third party rights or our policies;
you will deliver all Products sold by you in a timely manner;
you will not circumvent or manipulate the billing process, or Fees or Margin owed to EarthHero;
you will not distribute or post spam, unsolicited, or bulk electronic communications, chain letters, viruses or pyramid schemes or any other technologies that may harm EarthHero, or the interests or property of other Users;
you will not export or re-export any portion of the Platform or Platform and/or Seller Services except in compliance with the export control laws of any relevant jurisdictions;
all statements, advertisements, communications, and/or representations made by you in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such promotions from being false or deceptive and otherwise comply with your country’s laws and all U.S. federal and state laws, including U.S. Federal Trade Commission (“FTC”) regulations, policies and guidelines governing advertising, disclosure and consumer protection;
you will provide accurate Sustainability Feedback both to EarthHero and in response to any Buyer inquiry;
you will provide valid email addresses to which Buyers or EarthHero can send inquiries and receive a reply by end of the following business day
you will notify EarthHero of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Product within two business days of your receipt of such complaint;
you shall assist EarthHero, at your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by EarthHero to respond to and/or resolve such complaints.
Your Products do not include or consist of any of the following types of “Prohibited Product”:
unlicensed proprietary content;
deceptive marketing practices (e.g. hidden disclosures, bogus claims and endorsements, refund/cancellation avoidance, poorly disclosed negative options, pre-checked opt-in boxes for payment without cardholder’s active consent;
Data Pass (i.e. sharing of cardholder data from one merchant to a different merchant for payment of up-sell/cross sell products or services);
any tactics intended to evade Card Brand excessive chargeback monitoring programs;
Counterfeit goods/replicas (i.e., knock-offs, imitations, bootlegs);
Marijuana dispensaries and related businesses;
Pharmacies, Internet/MOTO (non-institutional);
Pseudo pharmaceuticals (e.g., anti-aging pills, sexual stimulants, weight loss, diet, etc.);
Subscriptions, in excess of one year (i.e. two year, three year lifetime etc.);
Substances designed to mimic illegal drugs;
Tobacco products; or
Weapons and ammunitions.
Offering of any of the prohibited products may result in the immediate suspension or termination of your Account and the forfeitures of any Fee or Margin balance owed by EarthHero, and you may be liable for the amount of any refunds paid by EarthHero to the affected Buyers.
EarthHero will, in its sole and absolute discretion, allow for the return or replacement of any Product purchased using our services within 60 days from the date of purchase for any of the following reasons:
If the customer requests a return within 60 days of purchase because the Product is a Prohibited Product;
If the customer provides a valid report that the charge was fraudulent or unauthorized;
In order to comply with credit card industry rules, ACH industry rules, PayPal terms of service, U.S. law, and requests from verified US judiciary or law enforcement agents; or
For any other reason EarthHero deems appropriate and fair.
When a Product is returned, the Buyer generally receives a full refund. Payouts from that sale are debited back out of your Account. If you shipped the Product directly to the Buyer, you will need to arrange physical return of the Product directly with the Buyer. For Products that are consumable and have been partially used or consumed by the Buyer prior to return, we may issue a refund for less than the full purchase price. You are not permitted to require Buyers to agree to any terms that reduce or limit this return policy.
Buyers requesting serial or repeated returns may be blocked from making further purchases using the Platform.
8. AVAILABILITY OF SERVICES; SUSPENSION; TERMINATION.
Subject to the terms and conditions of these Terms and EarthHero’s policies and procedures, EarthHero shall use commercially reasonable efforts to provide the Seller Services in a manner that will not disrupt your business. You acknowledge and agree that from time-to-time the Seller Services may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that EarthHero may undertake from time to time; or (iii) causes beyond the reasonable control of EarthHero or that are reasonably unforeseeable by EarthHero, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that EarthHero is not liable for these periodic interruptions in availability of the Seller Services and further acknowledge that EarthHero does not guarantee access to the Seller Services on a continuous and uninterrupted basis.
EarthHero may decline, delist or halt sales or promotion of any Product, close an Account, and/or suspend or terminate the Seller Services, or your access to the Seller Services at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
EarthHero, in its sole discretion, may suspend or terminate your Account(s), or retain any or all funds in your Account, if EarthHero suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of these Terms. In addition to the foregoing, and all other rights and remedies available to EarthHero at law or in equity and notwithstanding anything in the Agreement to the contrary, in the event you breach any term of these Terms, or your Account becomes dormant and/or has a negative balance, EarthHero will have the right to immediately suspend or terminate your Account and your rights to access, use and/or otherwise participate in the Platform and/or Seller Services. Upon such termination, you agree to immediately cease all use of the Platform and/or Seller Services. Without limiting the foregoing, EarthHero shall have the right to immediately terminate your access and use of the Platform and/or Seller Services, or any portion thereof, in the event of any conduct which EarthHero, in its sole discretion, considers to be unacceptable. Following suspension or termination of an Account or retaining of funds pursuant to this Section, EarthHero will review your Account in a manner determined by EarthHero in its sole discretion. You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, you agree that EarthHero may retain funds in your EarthHero account as liquidated damages and/or for the benefit of EarthHero or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (i) are not a penalty, and (ii) are reasonable and not disproportionate to such presumed damages to EarthHero.
EarthHero may temporarily withhold any portion of the funds in your Account if EarthHero, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness you may have incurred with EarthHero or any Buyer If you maintain a refund rate in excess of 15%, you agree that we may retain an amount equal to 25% of your current balance for 90 days on a rolling basis to cover the cost of refunds. If you maintain a refund rate significantly above this amount, your Account may be subject to additional fees.
You shall not send any marketing electronic mailings to EarthHero’s customers without EarthHero’s prior express written permission, which permission shall be granted in EarthHero’s sole and absolute discretion.
You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine, or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
You may not, directly or indirectly, send, initiate or procure the sending of any text message to promote or sell Products unless you have received prior written approval from the owner of each device to which such message is sent. If you receive such approval and you send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect promotion or sale of any Product and/or your use of the Platform and/or Seller Services, then you represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission (“FCC”), the Telephone Consumer Protection Act (“TCPA”) and state laws regarding anti-spam, text messages and Do-Not-Call Registries.
EARTHHERO’S IP RIGHTS.
Except as set forth in Section 8(b) below, you may not use EarthHero’s name, trademarks, service marks or any other IP Right of EarthHero in any manner whatsoever to suggest association or affiliation with or endorsement by EarthHero without the express prior written consent of EarthHero, which EarthHero may withhold at its sole discretion.
Subject to the following terms and conditions, during the term of these Terms EarthHero grants you a limited, revocable license to use EarthHero’s name: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text, in each case solely for the purpose of driving traffic to the Platform to promote your Product. EarthHero may revoke the foregoing license and/or provide restrictions upon your use of EarthHero’s name, including requiring the use of such disclaimers as EarthHero may provide, in connection with your use of EarthHero’s name, at any time and for any reason in EarthHero’s sole discretion. EarthHero shall be and remain the sole owner of all right, title and interest in and to the Platform and/or Seller Services (including, without limitation, all IP Rights) and any other IP Rights, materials or other properties owned, licensed or controlled by EarthHero, and you hereby assign to EarthHero all right, title and interest you may be deemed to have therein. All rights not specifically granted to you under these Terms are expressly reserved by EarthHero.
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other U.S. Laws. you hereby represent and warrant that any Product promoted, offered and/or provided by you via the Platform and/or Seller Services is approved for export from the United States without additional authorization or licensing from the U.S. government. Should the export authorization status of your Products change, you must immediately notify EarthHero in writing. Information on U.S. export control regulations can be found on the Commerce Department’s website at http://www.bis.doc.gov, the State Department’s website at http://www.pmddtc.state.gov and the U.S. Treasury Department’s website at http://www.treas.gov/offices/enforcement/ofac/index.shtml.
It is your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of your business.
To the fullest extent permitted by law, you agree that
In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever (“Claim”) in connection with your use of the Platform and/or Seller Services, your Products, or promotions, you shall defend, indemnify and hold harmless EarthHero, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the “EarthHero Parties”), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys’ fees and costs) (“Losses”) incurred by any EarthHero Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
In the event that EarthHero incurs costs, attorneys’ fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to your Products or promotions, including copyright infringement complaints under the DMCA, EarthHero reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to you by EarthHero up to a maximum of ten thousand dollars ($10,000) per event. In the event that EarthHero incurs any Losses relating to your violation of EarthHero’s Email/Text Message/Telemarketing policy, EarthHero reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to you by EarthHero up to a maximum of twenty thousand dollars ($20,000) per event. you understand and agree that the remedies set forth above are not exhaustive and that EarthHero retains all rights to indemnification described herein. You authorize EarthHero to make, and release EarthHero from any liability in connection with, any such deductions.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY EARTHHERO PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF OR INABILITY TO USE THE SELLER SERVICES OR PLATFORM, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE SELLER SERVICES OR PLATFORM, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SELLER SERVICES OR PLATFORM, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SELLER SERVICES OR PLATFORM, WHETHER OR NOT EARTHHERO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF EARTHHERO FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY EARTHHERO TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SELLER SERVICES, PLATFORM, AND ANY SERVICES OR INFORMATION OFFERED THROUGH OR IN ASSOCIATION WITH THE SELLER SERVICES OR PLATFORM, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF EARTHHERO SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
DISCLAIMER. YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE SELLER SERVICES AND PLATFORM. THE SELLER SERVICES AND PLATFORM AND ALL RELATED SERVICES ARE OFFERED “AS IS” AND EARTHHERO DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER EARTHHERO NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE SELLER SERVICES AND PLATFORM.
16. GENERAL TERMS AND CONDITIONS.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms. We may amend these Terms at any time by posting the amended terms on this site. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. Additionally, we will notify you through the EarthHero Message Center. These Terms may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a “writing” doesn’t include an email message and a signature doesn’t include an electronic signature. EarthHero may freely assign or transfer any or all of the rights and obligations described in these Terms. you may not assign these Terms or any of your rights and duties hereunder without the prior written consent of EarthHero. These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of these Terms is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible. The waiver or failure by EarthHero to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of EarthHero set forth in these Terms are cumulative and are in addition to any rights or remedies EarthHero may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.