Terms of use
Last Revised: January 1, 2022
PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EARTH FUNERAL GROUP, INC. ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Access and Use of the Earth Website
Member Account, Password and Security
Some features on the Earth Funeral Group, Inc. (“Earth”, “the Company”) website, www.earthfuneral.com (the “Site”) require use of a password. You are responsible for protecting your password. You agree that you will be responsible for all statements made, and acts or omissions that occur, through the use of your password. If you have any reason to believe or become aware of any loss, theft, or unauthorized use of your password, notify the Company immediately. The Company may assume that any communications the Company receives under your password have been made by you unless the Company receives notice otherwise.
Modifications to Earth Website
The Company reserves the right to modify the contents of the Site at any time, but we have no obligation to update any information on the Site. You agree that it is your responsibility to monitor changes to the Site. You agree that Earth will not be liable to you or to any third party for any modification, suspension or discontinuance of the Earth Website.
General Practices Regarding Use and Storage
You acknowledge that Earth may establish general practices and limits concerning use of the Earth Website, including without limitation the maximum period of time that data or other content will be retained by the Earth Website and the maximum storage space that will be allotted on Earth servers on your behalf. You agree that the Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Earth Website. You acknowledge that Earth reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Earth reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services
The Earth Website includes certain services that are available via a mobile device, including (i) the ability to upload content to the Earth Website via a mobile device, (ii) the ability to browse the Earth Website from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Earth Website through a mobile device, your wireless service 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 may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Earth and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Earth account information to ensure that your messages are not sent to the person that acquires your old number.
Intellectual Property Rights
License Grant; Usage Restrictions
Subject to the terms of this Agreement, Earth will provide you a limited, non-exclusive, non-transferable, non-sublicensable access to the Earth Website for non-commercial purposes only. The technology and software underlying the Earth Website or distributed in connection therewith are the property of Earth, our affiliates and our partners. You will not, directly or indirectly: sell, assign, sublicense, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Earth Website or any software, documentation or data related to the Earth Website (“Software”); modify, translate, or create derivative works based on the Earth Website or any Software (except to the extent expressly permitted by Earth or authorized within the Earth Website); use the Earth Website or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Earth.
Service Content and Trademarks
You acknowledge and agree that the Earth Website may contain content or features (“Website Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Earth, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Earth Website or the Website Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Earth Website. In connection with your use of the Earth Website you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Earth from accessing the Earth Website (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Earth Website or the Website Content other than as specifically authorized herein is strictly prohibited. The Earth name and logos are trademarks and service marks of Earth (collectively the “Earth Trademarks”). You may not use any metatags or other “hidden text” utilizing “Earth” or any other name, trademark, or product and service name of Earth without our prior written permission. In addition, the look and feel of our Website, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Earth and may not be copied, imitated or used, in whole or in part, without our prior written permission. Other company, product, and service names and logos used and displayed via the Earth Website may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Earth. Nothing in these Terms or the Earth Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Earth Trademarks displayed on the Earth Website, without our prior written permission in each instance. All goodwill generated from the use of Earth Trademarks will inure to our exclusive benefit. Reference to any products, services, processes or other information, by trademark, manufacturer, supplier, third-party vendor or otherwise does not constitute or imply our endorsement, sponsorship or recommendation.
Third Party Material
Under no circumstances will Earth be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Earth does not pre-screen content, but that Earth and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Earth Website. Without limiting the foregoing, Earth and its designees will have the right to remove any content that violates these Terms or is deemed by Earth, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Earth Website
With respect to the content, you upload or transmit through the Earth Website or share with other Users or recipients, which may include, but is not limited to data, images, media, product descriptions, or other materials, (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. For clarity, User Content does not include your Confidential Information. By uploading any User Content, you hereby grant and will grant Earth and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Earth Website or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Notwithstanding anything to the contrary, you agree that Earth is hereby granted the right to use (during and after the term hereof) all User Content submitted hereunder to train its algorithms internally through machine learning techniques for such purpose. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Earth Website (“Submissions”), provided by you to Earth are non-confidential, and Earth will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that Earth may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Earth, its users and the public. You understand that the technical processing and transmission of the Earth Website, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints
Earth respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Earth of your infringement claim in accordance with the procedure set forth below. Earth will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Earth’s Copyright Agent at privacy@earthfuneral.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at: To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Earth Website, with enough detail that we may find it on the Earth Website;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- and a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content;
- and your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within King County and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
Conditions of Use
User Content
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Earth Website, and represent that you have all necessary rights to such content. The following are examples of the kind of content and/or use that is illegal or prohibited by Earth. Earth reserves the right to investigate and take appropriate legal action against anyone who, in Earth’s sole discretion, violates this provision, including without limitation, removing the offending content from the Earth Website, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Earth Website to: i. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Earth, is objectionable or which restricts or inhibits any other person from using or enjoying the Earth Website, or which may expose Earth or its users to any harm or liability of any type; ii. interfere with or disrupt the Earth Website or servers or networks connected to the Earth Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Earth Website; iii. violate any applicable local, state, national or international law, or any regulations having the force of law; iv. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; v. solicit personal information from anyone under the age of 18; vi. harvest or collect email addresses or other contact information of other users from the Earth Website by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; vii. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; viii. further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or ix. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Earth Website.
Commercial Use
Unless otherwise expressly authorized herein or in the Earth Website, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Earth Website, use of the Earth Website, or access to the Earth Website.
Third Party Websites
The Earth Website may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Earth has no control over such sites and resources and Earth is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Earth will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Earth Website are between you and the third party, and you agree that Earth is not liable for any loss or claim that you may have against any such third party.
Indemnity
Users shall indemnify and shall hold harmless Earth (including any parent, affiliate, and subsidiary companies), upon its first demand, from and against any and all claims, demands, actions, suits, causes of action, damages, and expenses (including, but not limited to, expenses of investigation, settlement, litigation, and attorneys’ fees incurred in connection therewith) (“Losses”) that any third party (including any customer) makes, sustains, or brings against Earth (including any parent, affiliate, and subsidiary companies) or any of its customers to the extent resulting from or in connection with (1) User’s breach of this Agreement, (2) your conduct in using the Earth Website, including User’s interaction with others regardless of whether such interaction is related to use of the Earth Website, (3) act or omission by User or anyone on its behalf in connection with this Agreement or the Products (including, without limitation, those resulting from the growing, production, manufacture, packing, storage, use or consumption of the Products and/or related to defective Products); and/or (4) any claim for infringement, misappropriation or misuse of any intellectual property rights and/or industrial rights of any person with respect to the Products.
Disclaimer of Warranties
YOUR USE OF THE EARTH WEBSITE IS AT YOUR SOLE RISK. THE EARTH WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARTH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. EARTH MAKES NO WARRANTY THAT (I) THE EARTH WEBSITE WILL MEET YOUR REQUIREMENTS, (II) THE EARTH WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE EARTH WEBSITE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE EARTH WEBSITE WILL MEET YOUR EXPECTATIONS.
Limitations of Liability
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITES. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITES MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITES IS AT YOUR OWN RISK AND THAT THE SITES ARE MADE AVAILABLE TO YOU AT NO CHARGE. RECOGNIZING SUCH, YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE SITES, OR ANY OTHER SITES YOU ACCESS THROUGH A LINK FROM THE SITES OR FROM ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US, OR THE DELAY OR INABILITY TO USE THE SITES, OR FOR ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED ON OR OBTAINED THROUGH THE SITES, THE COMPANY’S REMOVAL OR DELETION OF ANY MATERIALS SUBMITTED OR POSTED ON ITS SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE SITES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER THE COMPANY NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OF THE SITES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OF THE ABOVE CLAIMS OR ANY DISPUTE WITH THE COMPANY IS TO DISCONTINUE YOUR USE OF THE SITES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Dispute Resolution by Binding Arbitration
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Use as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Earth, whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the Earth Website, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Use, you and Earth are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND EARTH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EARTH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
Earth is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at care@earthfuneral.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by email, a written Notice of Dispute (“Notice”). The Notice to Earth should be sent to privacy@earthfuneral.com (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Earth and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Earth may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Earth or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Earth is entitled.
Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Use as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Earth and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Earth agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Earth will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Earth will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Earth will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Use will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Use to the contrary, Earth agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Earth Website, you may reject any such change by sending Earth written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).
Termination
You agree that Earth, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Earth Website and remove and discard any content within the Earth Website, for any reason, including, without limitation, for lack of use or if Earth believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Earth, may be referred to appropriate law enforcement authorities. Earth may also in its sole discretion and at any time discontinue providing the Earth Website, or any part thereof, with or without notice. You agree that any termination of your access to the Earth Website under any provision of this Terms of Use may be affected without prior notice and acknowledge and agree that Earth may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Earth Website. Further, you agree that Earth will not be liable to you or any third party for any termination of your access to the Earth Website. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
General
These Terms of Use constitute the entire agreement between you and Earth and govern your use of the Earth Website, superseding any prior agreements between you and Earth with respect to the Earth Website. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. These Terms of Use will be governed by the laws of the State of Washington without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Earth agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within King County. The failure of Earth to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Earth Website or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Use without the prior written consent of Earth, but Earth may assign or transfer this Terms of Use, in whole or in part, without restriction. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Earth Website may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Earth Website.
Your Privacy
At Earth, we respect the privacy of our users. For details, please see our Privacy Policy. By using the Earth Website, you consent to our collection and use of personal data as outlined therein.
