Terms of Service
Last Updated: September 29, 2021
Welcome to 1Earth. As an 1Earth customer, you must abide by these “Terms.”
1Earth (together with our subsidiaries and other affiliates) is referred to herein as “1Earth”, “we”, “us” and “our.” Furthermore, for purposes of clarity, you and 1Earth may be referred to individually as a “party” or collectively as the “parties.”
1Earth provides a decentralized platform (the “Platform”) that, among other things, will offer for sale 1Earth Tokens (the “Tokens”) on a worldwide basis to the consuming public. A percentage of all Token sales will be gifted by 1Earth to charitable causes as selected and voted upon by Token holders.
The 1Earth is being organized as a Decentralized Autonomous Organization (“DAO”) that will be created through and governed by a smart contract (i.e., complex computer instructions that will be permanently installed on a blockchain to manage and oversee 1Earth’s operations). 1Earth will be governed by the DAO once all Token sales has been affected. Until then, 1Earth will be governed by a Board of Managers.
PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THEM AND USING THE PLATFORM, YOU AGREE TO THESE TERMS WHICH CREATES A BINDING AGREEMENT BETWEEN 1Earth AND YOU.
Your account registration constitutes an acknowledgement that you can electronically receive, read and understand these Terms, and that you consent to and will comply with them.
If you register to use the Platform as an individual, references to “you” are to you. If you register to use the Platform on behalf of an entity or organization, references to you include, not only you, but all employees and contractors of such entity or organization. In the latter instance, you represent that you have the authority to bind such entity or organization to these Terms.
IF YOU PURCHASE A TOKEN FROM US, YOU AGREE THAT IT IS A UTILITY TOKEN AND NOT A SECURITY AS DEFINED BY THE SECURITIES LAWS IN THE UNITED STATES AND OTHER COUNTRIES, AND THAT YOU ARE NOT ACQUIRING IT FOR INVESTMENT PURPOSES.
FURTHERMORE, YOU AGREE THAT THE TOKENS ARE NOT COMMODITIES AS SUCH TERMS IS DEFINED IN THE UNITED STATES AND OTHER COUNTRIES.
THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE WHICH REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THESE TERMS, YOUR ACCOUNT OR THE PLATFORM BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY.
1. 1Earth Platform.
1.1 1Earth Platform.
(a) Provision of Platform. 1Earth makes the Platform available to you under these Terms and any supplemental policies made applicable from time-to-time (collectively, "Supplemental Terms"), all of which are incorporated herein. In the event of a conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control.
(b) 1Earth Services. The 1Earth may provide services to you from time to time (the “1Earth Services”) aside from your right to acquire Tokens. A listing of various services available from 1Earth will be specified on the Platform from time to time and may be free of charge or available for a fee.
(c) Content. The content contained in the Platform (hereinafter the “1Earth Content”) is owned by 1Earth and is protected by applicable copyright laws. In order to use the Platform, 1Earth hereby grants you a limited, revocable, non-sublicensable license to use, reproduce and copy the 1Earth Content solely for your use, subject to your compliance with these Terms. You may not resell any of the 1Earth Content to any third party. Any data that you provide to 1Earth may be shared with other vendors with whom 1Earth conducts business for purposes of enabling you to use it. For purposes hereof, references to the Platform shall include the 1Earth Services and 1Earth Content, unless otherwise specified.
1.2 Third Party Sites. If you are transferred to an external site while using the Platform, your use of such third-party site is subject to the terms and conditions of its owner.
1.3 Disclosures. 1Earth is not responsible for the accuracy of the 1Earth Content contained within the Platform even though we have tried our best to ensure its accuracy. Any 1Earth Content made available to you on the Platform is intended for your general use only, and 1Earth cannot guarantee its accuracy. If you desire to purchase a Token from us and have questions regarding applicable tax or similar such considerations, please seek professional advice from a lawyer or accountant, as the case may be.
1.4 Eligibility and Jurisdiction. The Platform is available to persons in jurisdictions in which they may be legally sold. Nothing on the Platform shall be considered a solicitation to buy or an offer to sell anything in a jurisdiction in which such offer, solicitation, purchase or sale is unlawful.
Furthermore, using the Platform is at your sole risk. You agree to comply with all local rules and laws regarding your use of the Platform. For that reason, 1Earth disclaims any liability regarding your use of the Platform.
1.5 User Limitations. The Platform may only be accessed by users that are at least 13 years of age and are not otherwise barred from using it under applicable law. You are responsible for ensuring that you and any user that you allow to access the Platform are authorized to do so by law, and that such use complies with all wage and hour, employment and any other laws and regulations.
1.6 No Follow-On Sales. It is a violation of these Terms to use the Platform to sell products or services to others. Therefore, you agree to use the Platform solely for its intended use (i.e., as described herein), and not to market or sell products or services to others.
1.7 Mobile Services. The Platform is available through a mobile device, including (i) the ability to upload content to it; (ii) the ability to browse the Platform and other websites; and (iii) the ability to access certain features (collectively, the “Mobile Services”). If you access the Platform through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device, and that information about your usage may be communicated to us. If you change or deactivate your mobile telephone number, promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
2. Your Responsibilities.
2.1 Consent to Electronic Delivery; Electronic Signature.
(a) Electronic Signature. Your agreement to these Terms electronically is the legal equivalent of your manual or handwritten signature.
(b) Electronic Delivery. You agree that 1Earth may electronically deliver documents and/or disclosures to you via the email address that you provided to us when you registered. If you are using the Platform on behalf of an entity or organization and/or its employees and contractors, you represent that you have their affirmative consent to receive electronic disclosures for them through the Platform.
(c) Withdrawing Consent. You may withdraw your consent to electronic signatures or electronic disclosures at any time. However, if you do so: (i) 1Earth cannot guarantee that you will obtain relevant disclosures or maintain full access to the Platform; (ii) you may be required to obtain paper copies of your documents and notices directly from 1Earth or your employer or contractor (if they have received them for you); and (iii) you may incur additional fees for requesting paper copies from 1Earth. You acknowledge that 1Earth relies on electronic communications as a core component of its services; accordingly, if you are using the Platform on behalf of a company and/or its employees and contractors, and you withdraw electronic consent, 1Earth may be unable to provide you with access to the Platform and may terminate your use of it in whole or in part.
2.2 Accuracy of Information. You acknowledge that 1Earth is entitled to rely conclusively on all information that you provide to us, and that we do not have an obligation to verify, correct, or otherwise ensure the accuracy or quality of your data. You further acknowledge that 1Earth bears no responsibility and shall not have liability for errors, omissions, penalties, fines, incorrect coverage or any other losses incurred that result from inaccurate or incomplete information that you provide us.
2.3 User Data. With respect to any personal information that you provide to 1Earth simply to use the Platform (i.e., such as your name, address, phone number, email address)(collectively, “User Data”), you represent and warrant that you have the necessary rights and permissions to use, make available and send us such User Data, even if it belongs to others in the case of employees or contractors for (i.e., that may belong to others within an entity or organization) regarding your use of the 1Earth Services.
You agree that 1Earth may preserve User Data if required by law or in a good faith belief that its preservation or disclosure is necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any 1Earth Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of 1Earth, its users and the public. You understand that User Data may involve transmissions over various networks over which 1Earth has no control and that 1Earth cannot be liable for your losses from your or our use of such networks. start
2.4 Account Administration; Authorizations.
(a) Accounts. To use the Platform, each user must create an account (an “Account”) by providing their email address (“Account Email”) and a master password (the “Master Password;” collectively, the “Credentials”). For purposes of clarity, the term Credentials likely includes User Data (as defined above). You and each user are responsible for the security of your or their Account and Credentials. You understand that your Account is solely for your use, and that you will not share your Account or Credentials with anyone. You are fully responsible for all activities on the 1Earth Platform associated with your Account. If you are associated with an entity or organization, you (i.e., the entity or organization) are fully responsible for all activities of your employees and contractors that use the 1Earth Services and in ensuring their compliance herewith.
(b) Account Administration. If you work with others or are part of an entity or organization, you will designate and authorize one or more individuals with authority to (i) act on your behalf; (ii) provide information on your behalf; and (iii) bind you and/or your business with respect to your use of the Platform (each such individual, an “Account Administrator”). As an Account Administrator, you are solely responsible for all actions taken under an account assigned to you, your employer and all employees and contractors of your employer. Any actions taken under such accounts will be deemed authorized by you, regardless of your knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to; (i) actions taken by you, your employer and all employees and contractors of your employer; and (ii) actions that 1Earth reasonably believes to have been authorized by you, your employer and all employees and contractors of your employer.
(c) Account Information. To access or use certain aspects of the Platform, you may need to provide your account information at third party institutions, such as credit card companies, banks, crypto wallets or crypto exchanges. Further, 1Earth may also require relevant information such as signatures, data, passwords, usernames, PINs and other necessary information, and materials and content from your accounts at other companies (“Account Information”). You retain all right, title and interest in and to your Account Information, and represent and warrant that the Account Information provided is accurate and complete, and may be provided to 1Earth without any obligations imposed on 1Earth to verify the accuracy or completeness of such Account Information. You are responsible for making sure that 1Earth can access such information and that it is accurate.
(d) Communications and Notifications. You are responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) made available to you by 1Earth for your review, if any, and you must notify 1Earth of any inaccuracies in the Materials as soon as possible.
2.5 Third Party Products.
(a) Independent Services. The Platform is designed to work with many third-party websites, services and applications (“Third Party Products”). 1Earth does not provide any representations, warranties, indemnities, or support with respect to such Third Party Products, unless otherwise agreed in writing.
You acknowledge that 1Earth is not responsible for any use, disclosure, modification or deletion of User Data that is transmitted to or accessed by a Third Party Product, and that the handling of such User Data within the Third Party Product will be exclusively governed by the separate terms and agreements, if any, between you and such third party provider. You and your users must comply with all terms and conditions applicable to the use of Third Party Products. You will not use the Platform in a manner that damages, disables, overburdens, or impairs any websites, servers, or otherwise interferes with the Third Party Products. You acknowledge that you have sole responsibility for and that you assume all risks arising from your use of any Third Party Products. 1Earth does not guarantee the continued availability, operation, or utility of Third Party Products and their use with the Platform.
(b) Authorizations for Third Party Products. To connect the Platform with Third Party Products, you authorize 1Earth to, as applicable: (i) store relevant Account Information; (ii) access the relevant service using the Credentials that you provide; (iii) use and apply any signatures or other materials you provide 1Earth in order to provide related services; (iv) gather and export from such Third Party Product any data or other information reasonably necessary for your use of the Platform; and (v) take action regarding such Third Party Products as is reasonably necessary to provide related services to you.
(c) Management of Third Party Accounts. You are solely responsible for (i) ensuring that any Third Party Product accounts are accurately and properly provisioned for or matched to your Account on the Platform; (ii) ensuring the termination or de-linking of any Third Party Product accounts from your Account (e.g., due to termination of your relationship with such third party); and (iii) otherwise following all instructions provided by 1Earth in connection with matching, de-linking, termination or other management of your 1Earth accounts in relation to Third Party Products.
2.6 Prohibited Activities. In using the Platform, you agree that You will not (nor will you permit any user or third party to):
- market or sell your own products or services or those of a third party through use of the Platform;
- reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the Platform;
- transfer, resell, lease, license or assign your use of the Platform or otherwise offer use of the Platform on a standalone basis, or permit any third party to access the Platform (i.e., except for your authorized employees or contractors, if applicable), without express permission from 1Earth;
- use or access the Platform to build a similar or competitive product or service to or for the purpose of obtaining unauthorized access to the Platform;
- share your 1Earth username and password with any other person, or allow any other person to use your 1Earth username and password to access the Platform;
- develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to scrape the Platform or otherwise copy profiles and other data from the Platform in order to enable, use or build a similar or competitive product or service;
- tamper with the security of 1Earth’s systems or tamper with any other accounts of 1Earth;
- attempt to probe, scan or test the vulnerability of any 1Earth systems or to breach the security or authentication measures of 1Earth’s systems;
- use or launch any automated system, including "robots," "spiders" or "offline readers" that send more requests to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser;
- use the Platform in any manner that damages, disables, overburdens, or impairs any of our websites, servers or otherwise interferes with any other party's use of the Platform;
- access the Platform other than through our website or interface or an approved Third Party Product;
- engage in harassing or other inappropriate behavior with respect to any 1Earth employee;
- use the Platform for any fraudulent activity or purpose; or
- use the Platform in violation of any applicable law, for illegal activities, or for activities outside the scope expressly permitted hereunder.
For the avoidance of doubt, 1Earth welcomes and encourages the responsible disclosure of security vulnerabilities at [email protected]
2.7 Compliance with Laws.
(a) Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting your use of the Platform. You are also responsible for ensuring that your employees and contractors comply with applicable laws while using the Platform including the intellectual property and third-party rights of others.
2.8 Trademarks. The names and logos of 1Earth and any third parties belong to their respective owners and are used herein with permission. You and your users may not use the name or logo of 1Earth or third parties without our or their written consent, as applicable. Such names and logos are protected by common law, state and/or Federal trademark laws.
3. Term and Termination.
3.1 Term. These Terms will commence on the date that you create your account with 1Earth and affirm your consent hereto, or if earlier, the date that you begin using the Platform, and will continue until terminated as provided herein (the “Term”).
3.2 Termination by 1Earth. 1Earth may permanently terminate your access to the Platform without liability to you on thirty (30) days’ prior notice for any actual or suspected violation of these Terms. Separately, you may deactivate your 1Earth Services account at any time by using the tools provided in the Platform; provided, however, that (i) such action will not be deemed a termination of the Agreement or any associated payment obligations, as deactivation and termination are different; (ii) these Terms shall continue to apply with regards to protection of 1Earth’s intellectual property rights; and (iii) you will remain obligated to pay any outstanding fees to 1Earth. Upon termination, the provisions hereof that by their nature extend beyond termination shall continue to apply. Therefore, if you intend to terminate these Terms, please notify us at [email protected]
3.3 Suspension. Without limiting our other rights or remedies, 1Earth may temporarily suspend your access to any portion of the Platform without prior notice if (a) 1Earth reasonably determines that (i) there is a threat or attack on the Platform or other event that may create a risk to the Platform, you or any other user; (ii) your use of the Platform disrupts or poses a security risk; or (iii) you are in breach of Section 2.6 (Prohibited Activities) or Section 2.7 (Compliance with Laws); or (b) 1Earth has notified you that any amount owed by you under these Terms is thirty (30) or more days overdue, and you have failed to submit payment in full within five (5) days of receipt of such notice (collectively, “Service Suspensions”). 1Earth will provide notice of any Service Suspension and provide updates regarding resumption of 1Earth Services. 1Earth will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
4. Service Fees and Charges.
4.1 Fees. The fees that you pay to acquire Tokens will be paid through an exchange or a wallet, and will NOT be paid directly 1Earth. You may, however, acquire Services from 1Earth in the future for which you may pay us directly. The amount and terms of any purchase through us will be provided to you at the time of the sale.
4.2 Fee Disputes. You must notify 1Earth of an disputes pertaining to a charge in writing within ten (10) days of the charge. If you do not provide such notice, you waive any rights to dispute the charges.
4.4 Taxes. All amounts and fees stated or referred to in these Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from your purchase or sale of Tokens any payments made hereunder, other than any taxes based on 1Earth’s net income.
5. Proprietary Rights and Confidentiality.
5.1 1Earth’s Ownership Rights. As between you, your users and 1Earth, respectively, all right, title, and interest in and to the Platform, including the 1Earth Content, shall remain vested in 1Earth. Except for the express rights granted hereunder, 1Earth reserves all right, title and interest in the Platform and 1Earth Confidential Information (as defined below).
5.2 Feedback. You or your users may from time to time provide 1Earth with suggestions or comments for enhancements or improvements, new features or functionality regarding the Platform (“Feedback”). 1Earth will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. 1Earth will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5.3 User Data. All right, title, and interest in and to the User Data will remain vested in you. Upon termination, 1Earth will delete any User Data unless otherwise prohibited by law.
5.5 Data Security and Data Processing; Privacy.
(a) Data Security. 1Earth will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any User Data. Such safeguards will include, at minimum, an industry standard information security program and procedures to help ensure that only those with a “need to know” have access to such User Data. 1Earth will promptly notify you upon becoming aware of an incident that has compromised or may compromise the security, confidentiality or integrity of such User Data. 1Earth will comply with all notification obligations that may be required by applicable state and federal laws and regulations. 1Earth further reserves the right to protect its network and services from external threats including by restricting network access from various hosting providers, traffic proxies, and locations where 1Earth does not conduct business.
THE PLATFORM IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. 1EARTH HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PLATFORM.
WITHOUT LIMITING THE FOREGOING, 1EARTH DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
1EARTH DOES NOT WARRANT THE ACCURACY OF ANY INFORMATION CONTAINED IN THE 1EARTH CONTENT. 1EARTH DOES NOT VALIDATE CONTENT PROVIDED BY THIRD PARTIES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 1EARTH OR THE PLATFORM CREATES ANY WARRANTY. 1Earth DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR CONTENT. TO THE EXTENT THAT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
1EARTH DOES NOT GUARANTY THAT THE VALUE OF THE TOKEN THAT IT OFFERS WILL INCREASE IN VALUE OR PROVIDE ANY FORM OF A RETURN. YOU ACKNOWLEDGE THAT BUYING TOKENS IS SPECULATIVE, AND THAT YOU MAY OR MAY NOT BE ABLE TO SELL THEM IN THE FUTURE TO RECOVER ALL OR A PART OF ITS PURCHASE PRICE. YOU ACKNOWLEDGE THAT THA VALUE OF ANY TOKENS THAT YOU PURCHASE IS SUBJECT TO NUMEROUS FACTORS OVER WHICH 1EARTH HAS CONTROL INCLUDING, WITHOUT LIMITATION, THE PUBLIC’S ACCEPTANCE OF OUR TOKEN, THE ENTRY INTO THE MARKETPLACE OF SIMILAR CRYPTO CURRENCIES THAT THE PUBLIC FINDS MORE APPEALING THAN OURS FOR WHATEVER REASONS, THE REGULATION OF THE CRYPTO CURRENCY MARKETPLACE AND ISSUANCE AND/OR SALE OF TOKENS, GENERAL MARKET CONDITIONS SUCH AS ECONOMIC RECESSIONS, DEPRESSIONS AND OTHER SUCH PHENOMENA.
7.1 Indemnification by You. You agree to indemnify, defend and hold harmless 1Earth against any claim, demand, suit or proceeding (“Claim”) arising out of (a) your unauthorized use of or access to the Platform; (b) your violation of these Terms; (c) your violation of any third-party rights, including any right of privacy or any intellectual property right; (d) your violation of any applicable law, rule or regulation; (e) your use of User Data in a manner that violates these Terms or applicable law; and (f) access to and use of the Platform by unauthorized persons with your or your users’ Credentials. To receive the benefit of this indemnity, 1Earth will give you prompt written notice of the Claim and all reasonable cooperation, at your expense, in your defense and settlement of the Claim.
7.2 Indemnification by 1Earth. 1Earth agrees to indemnify, defend and hold you harmless against any Claim arising out of allegations by a third party that the 1Earth Services or any portion thereof infringe(s) or otherwise violate(s) such third party’s U.S. intellectual property rights. To receive the benefit of this indemnity, you must give 1Earth prompt written notice of the Claim, sole control to defend and settle it and reasonable cooperation, at 1Earth’s expense, in 1Earth’s defense and settlement of the Claim. If a claim under the foregoing clause (a) is made or likely to be made, 1Earth may: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the 1Earth Services; (ii) modify the infringing component(s) to make them non-infringing; or (b) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately.
8. Limitation of Liability.
YOU AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THESE TERMS AND TO LIMIT POTENTIAL LIABILITY. 1EARTH HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH ACCESS TO AND USE THE PLATFORM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 1EARTH, ITS AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING YOUR USE OF OR INABILITY TO USE THE PLATFORM OR THE LOSS OF THE PURCHASE PRICE OF A TOKEN; (B) ERRORS, MISTAKES OR INACCURACIES OF THE PLATFORM; (C) PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE PLATFORM, AND PURCHASE AND OWNERSHIP OF THE TOKEN; (D) THE CONTENT OF YOUR USER DATA; (E) ANY INTERRUPTION OR CESSATION OF TRANSMISSION OF THE PLATFORM; (F) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM; (G) ANY ERRORS OR OMISSIONS IN THE PLATFORM OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE PLATFORM; AND/OR (H) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. 1EARTH, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES AND SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY SORT OF DAMAGES FOR YOUR USE OF THE PLATFORM OR YOUR PURCHASE OF A TOKEN, EXCEPT IN THE INSTANCE OF OUTRIGHT FRAUD, IN WHICH CASE, 1EARTH’S LIABILITY SHALL NOT EXCEED $70,0000. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF 1EARTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 Assignment; Delegation. This Agreement and your account any rights and licenses granted hereunder may not be transferred or assigned by you without the prior written consent of 1Earth. Any attempted transfer or assignment in violation hereof shall be null and void. 1Earth, in its sole discretion, may use vendors or contractors to help provide the 1Earth Services to you, and 1Earth may change its use of vendors or contractors without notice to you. 1Earth will remain responsible for the acts and omissions of such vendors and/or contractors.
9.2 Governing Law. This Agreement will be governed by the laws of the State of [Wyoming], exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Subject to the agreement to arbitrate below, all disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts in [Miami-Dade County, Florida,][Cheyenne, Wyoming] USA, and the parties hereby consent to the personal jurisdiction of these courts.
9.3 Notices. 1Earth may provide notifications to you via email notice, text message, written or hard copy notice, or through posting of such notice on the 1Earth Services as determined by 1Earth in its sole discretion. 1Earth reserves the right to determine the form and means of providing notifications to users. 1Earth is not responsible for any automatic filtering that you or your network provider may apply to email notifications sent to the email address that you provide. 1Earth may, in its sole discretion, modify or update these Terms from time to time, so please review this page periodically. When 1Earth materially changes these Terms, 1Earth will update the ‘Last Updated’ date at the top of this page and notify you that material changes have been made to these Terms. Any such changes will become effective no earlier than thirty (30) days after they are posted, except that changes that address new functions of the Platform or changes made for legal reasons will be effective immediately. Your continued use of the Platform after any such change becomes effective constitutes your acceptance of these Terms, as updated. Notices to 1Earth shall be made to [email protected]
9.4 Waiver. No waiver of any rights will be effective unless assented to in writing. Any such waiver will be to the specific provision for which it was given, and will not apply to repeated or continued violations of these Terms. Failure or delay to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or another provision.
9.5 Relationship. Nothing contained herein will constitute an association, partnership, agency, employment or joint venture between 1Earth, you or your users, or be construed to establish such relationship. Neither 1Earth nor you or your users will have the authority to obligate or bind the other in any manner, and nothing herein will give rise to any rights to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that a provision of these Terms is invalid, illegal or otherwise unenforceable, such provision will be enforced in accordance with the stated intention of 1Earth and you, while the remainder of these Terms will remain in full force and effect.
9.7 Force Majeure. 1Earth will not be deemed in breach hereunder for cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control including, without limitation, earthquake, flood or natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation or other commodity or service required to conduct its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.8 Entire Agreement. This Agreement and any supplemental policies or terms that may be adopted comprise the entire agreement between you and 1Earth, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements. No oral or written information or advice given by 1Earth, its agents or employees will create a warranty or increase the scope of the warranties in these Terms.
9.9 Marketing. You agree that 1Earth may use your name and logo on its website and in marketing materials, unless you opt out of such usage by sending an email to [email protected].io.
10. Agreement to Arbitrate and Class Action Waiver
This Agreement is governed by the Federal Arbitration Act (“FAA”), including its procedural provisions. This means that the FAA governs, among other things, the interpretation and enforcement of these Terms and all of its provisions including, without limitation, the className action waiver discussed below. State arbitration laws do not govern in any respect.
This Agreement is intended to be broadly interpreted and will survive termination, which means (among other things) that these Terms apply even after you have stopped using your 1Earth account or have deleted it. The arbitrator and not any federal, state or local court or agency shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms including, but not limited to, any claim that all or any part of these Terms is void or voidable. If the parties have a dispute about whether these Terms can be enforced, whether these Terms apply to a dispute, or any other dispute about the meaning or scope of these Terms, the parties agree that the arbitrator shall have exclusive authority to resolve the dispute.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award, on an individual basis, the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow these Terms as a court would. For the avoidance of doubt, the arbitrator can award injunctive relief.
If these Terms are, for any reason, held to be unenforceable or inapplicable to a claim, any litigation against 1Earth (except for the intellectual property and small claims actions described in Section 10.3 below) may be commenced only in a federal or state court located within Los Angeles County, California, and both parties consent to the jurisdiction of those courts for such purposes.
10.3 Exceptions to Agreement to Arbitrate. You and 1Earth agree that our agreement to arbitrate will not apply to any disputes relating to your or 1Earth’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that such disputes may be brought in any court that has jurisdiction over such claims. Also, either party can bring a claim in small claims court in Los Angeles, California if the claim qualifies to be brought in that court.
10.4 Details of Arbitration Procedure.
(a) Informal Resolution. You and 1Earth agree that good-faith, informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. Prior to demanding or filing an arbitration, you and 1Earth agree to personally meet and confer in person or by videoconference in a good-faith effort to resolve any claim covered by these Terms. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in it. The party initiating the claim must give notice to the other in writing of the intent to initiate an informal dispute resolution conference, which shall occur within 60 days after issuance of such notice, unless an extension is mutually agreed upon. To notify 1Earth that you intend to initiate an informal dispute resolution conference, email 1Earth at [email protected] with the subject “INFORMAL DISPUTE RESOLUTION REQUEST” and provide your name, the telephone number and email address associated with your 1Earth account, and a description of your claim. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process described in this paragraph.
(b) If the informal dispute resolution process does not result in a resolution, either party may initiate an arbitration proceeding under the commercial arbitration rules of the AAA (the “Rules”). To the extent anything described in these Terms conflicts with the Rules, the language of these Terms applies. Any arbitration will be conducted in Miami-Dade County, Florida, or in another location that both parties agree to in writing or over Zoom or another such teleconference medium.
(c) Discovery. Each party will be entitled to obtain a copy of non-privileged, relevant documents in the possession or control of the other party, and each party may take two (2) depositions. All such discovery will be in accordance with the procedures approved by the arbitrator. This Agreement does not alter the statute of limitations that apply to any claims or counterclaims asserted by either party.
(d) Arbitration Award. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms, and may not award any relief that is inconsistent with these Terms.
(e) Final and Binding. Except as provided in the FAA, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
10.5 Class Action Waiver. You and 1Earth agree that any claims or controversies between us must be brought on an individual basis only, and not in a className, consolidated, or representative action. That means neither you nor 1Earth may bring such a claim as a plaintiff or className member in a className action, consolidated action or representative action. The arbitrator cannot combine or consolidate more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, className or representative proceeding (unless all parties agree otherwise in writing). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim and not any other persons or entities including 1Earth, you or your users, and cannot be used as precedent to decide other disputes with other parties. YOU AGREE (i) TO WAIVE ANY RIGHT TO A JURY TRIAL; (ii) TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-WIDE OR REPRESENTATIVE ARBITRATION OR LAWSUIT; AND (iii) TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT (INCLUDING FOR ANY CLAIM THAT IS DETERMINED NOT TO BE SUBJECT TO ARBITRATION UNDER THESE TERMS). If a court decides that this className action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of these Terms will still apply.