Terms of service for Earthly
Last updated: 24 October 2022
Part A - General
These customer terms of service (the Terms of Service) describe your rights and responsibilities when using our marketplace for the funding of nature based solutions, whether accessed via our website or via API, and our digital marketing assets, including but not limited to any textual, audiovisual, or other digital content provided from time to time (the Services). The Services are provided via https://www.earthly.org and via our API (together, the Site). Please read them carefully.
Information about us and how to contact us
We are Earthly (company number 11403131) (we and us), a company registered in England and Wales with our registered office at 5-7 Cranwood Street, London EC1V 9EE.
You can contact us by writing to us at 5-7 Cranwood Street, London EC1V 9EE or [email protected].
When we use the words "writing" or "written" in these terms, this includes emails.
Agreement to the Terms of Service
You must create an account on the Site to use the Services (an Account). You and the Customer confirm that all information provided to us in the creation of your Account is correct and the Customer agrees to ensure that the information is accurate at all times.
Your creation of an Account and use of the Services constitutes the Customer's agreement to be bound by these Terms of Service and forms a binding contract between the Customer and us (the Contract). If you do not agree with the terms of these Terms of Service, do not create an Account and do not use the Services. These Terms of Service may be amended and updated from time to time. You should review these terms periodically, and each use of the Service is subject to the then-current form of the Terms of Service.
If you purchase subscription(s) or use the Services, after being notified of a change to these Terms of Service, you acknowledge your understanding of the then-current Contract and agree to the updated Terms of Service on behalf of the Customer.
The Customer is the organisation that you represent in agreeing to the Contract. If someone who is not formally affiliated with an organisation signs-up to the Services, the Customer is the individual.
If you signed-up to the Services using your corporate email domain, your organisation is the Customer and you are the Customer's representative. If the Customer elects to replace you as the representative with ultimate authority for the workspace, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or the Customer to facilitate the transfer of authority to a new representative of the Customer.
The Customer may authorise employees, agents and independent contractors associated with it (each an Authorised User) to access the Services.
A subscription allows an Authorised User to access the Services. Subscriptions commence when we make them available to the Customer and continue for 12 months (the Subscription Period).
Unless otherwise agreed in writing, (a) all subscriptions automatically renew for additional periods equal to 12 months or the preceding Subscription Period, whichever is shorter; and (b) unless otherwise agreed in writing or notified to the Customer in accordance with these Terms of service, the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior Subscription Period. Either party can give the other notice of non-renewal at least 30 days before the end of a Subscription Period to stop the subscriptions from automatically renewing.
Part B - Your Responsibilities
Use of the Services
The Customer must comply with the Terms of Service and ensure that its Authorised Users comply with these Terms of Service. We may review conduct for compliance purposes, but we have no obligation to do so.
The Services are not intended for and should not be used by anyone under the age of 16. The Customer must ensure that all Authorised Users are over 16 years of age and are permitted to use the Services under any applicable law.
The Services are not intended for and should not be used by any company or organisation operating in the oil and gas sector. We reserve the right to extend at any time and without notice this limitation to any company which we judge to be seeking to greenwash or otherwise inappropriately using our Services to avoid emissions reduction activities. Limitations may apply to a class, a group, or an individual company or organisation.
The Customer agrees to use the Services in good faith for the purposes that they are provided and the Customer shall not or attempt to do any of the following.
Interfere with the Site or Service to any user in any manner, including without limitation by uploading any malware or viruses or any thing which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including, but not limited to worms, trojan horses, malware and other similar things or devices.
Resell or repurpose its access to the Site or the Services without our prior written consent.
Seek to transact directly with, or in any other manner circumvent Earthly for the purposes of completing the same transaction.
Misrepresent, misuse, or otherwise incorrectly represent the nature, outcomes, or impact of its transactions with Earthly. In particular, any claims relating to carbon neutrality, net zero, climate positive, or any other claim relating to the Customer's relative impact on the environment must be substantiated and approved in writing by Earthly if the Earthly brand, name, or assets are used or if made in reference to any transaction undertaken on this Site. Earthly makes available appropriate language and guidelines to the Customer governing announcements relating to transactions on this Site and it is the Customer's responsibility to adhere to these guidelines..
The Customer shall use all reasonable efforts to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
Prices and Payment obligations
The Customer must pay all fees applicable to the Services used (Fees) as set out and described on the Site for the Services that you have selected. The Fees for the Services will be confirmed on the order pages when you place your order for the Services.
Some Services may be made available to the Customer for free (the Free Services). We reserve the right to subsequently charge the Customer for any part of the Free Services. If we decide to charge the Customer for a Free Service, we will provide the Customer with reasonable notice of any charges and the Customer's continued use of relevant Free Service will be subject to the Customer's payment of the relevant charges.
The Fees must be paid in advance, shall be payable in the currency stated on the Site, are non-cancellable and (except as expressly stated in the Contract) non-refundable and include any explicitly set out relevant delivery costs, value added tax (VAT) or other fees and taxes.
We shall be entitled to increase the Fees in respect of any subscription Service upon 30 days' prior written notice to the Customer. The increased Fee will apply from the start of the subsequent Subscription Period.
If any Fees owed to us by the Customer (excluding amounts disputed reasonably and in good faith) are 30 days or more overdue, we may, without limiting our other rights and remedies, do all or any of the following.
Disable your password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
Charge interest on such due Fees at an annual rate equal to 4%, commencing on the due date and continuing until fully paid, whether before or after judgment.
Require the removal of any mention on the Customer's website or materials of Earthly and/or the transactions entered into.
The Fees may be paid by any of the following methods.
You must keep the payment information provided to us accurate and up to date.
We shall bill your payment card on or as soon as practicable after date you order the relevant Service for the Fee applicable to that Service. Where the Fee relates to a subscription service, we shall bill your payment card at the end of each Subscription Period for the Subscription Fees payable in respect of the next Subscription Period.
Part C - Our Responsibilities
Providing the services
We will make the Services available to the Customer and its Authorised Users as described in the Contract.
We will make all commercially reasonable efforts to schedule maintenance during non-peak hours and minimise any such downtime to the Services or the Site and will endeavour give you at least 5 days written notice of any planned maintenance that will result in downtime other than between 11pm and 5am GMT on Saturday, Sunday or a public holiday in England & Wales. We will endeavour to make the Services available 24 hours a day, seven days a week, excluding planned downtime or issues related to force majeure.
We may leverage our employees, those of our corporate affiliates and third-party contractors (Third-Party Contributors) in exercising our rights and performing our obligations under the Terms of Service. We will be responsible for the Third-Party Contributor's compliance with our obligations under the Terms of Service.
Certain Services may be provided by third parties and the provision of such Services may be subject to further terms.
Part D - Data and Privacy
Authorised Users may submit Content or information to the Site in connection with their use of the Services (Customer Data). The Customer will (a) inform Authorised Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may affect the processing of Customer Data, and (b) ensure that the transfer and processing of Customer Data under the Contract are lawful.
The protection of Customer Data is a top priority for us, so we will maintain appropriate administrative, physical and technical safeguards. Those safeguards will include measures for preventing unauthorised access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third-party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorised access. We shall not use or process Customer Data for any purpose without the Customer's prior written instructions; provided, however, that "prior written instructions" will be deemed to include use of the Services by Authorised Users and any processing related to such use or otherwise necessary for the performance of the Contract.
The Customer will own all Customer Data. The Customer bears sole responsibility for adequate security, protection and backup of Customer Data when it is in the Customer's or its representatives' or agents' possession or control. We are not responsible for what the Customer's Authorised Users do with Customer Data.
Subject to these Terms of Service, the Customer (for itself and all of its Authorised Users) grants us and our Third-Party Contributors a worldwide, non-exclusive, limited-term licence to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; and (c) as expressly permitted in writing by the Customer. The Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorised Users as may be necessary to grant this licence.
The Customer acknowledges that it is the data controller for any personal data processed by us on the Customer's behalf in conjunction with your use of the Services. The Customer also acknowledges that we are its data processor and agrees to enter into the data processing agreement (which is available at: https://earthly.org/privacy-policy), which shall remain in effect for as long as we process personal data on your behalf.
We may contact you by e-mail or other electronic communication methods and you expressly agree to this.
The Site is owned and operated by Earthly. All copyrights, trademarks, trade names, logos and other intellectual or industrial property rights held and used by us (including titles, graphics, icons, scripts, source codes etc.) are our property or third party licensors' property and must not be reproduced, distributed, sold, used, modified, copied, limited or used (in whole or in part) without our written consent.
We grant you a non-exclusive right and licence to use the Site and the Services for the sole purpose of us providing the Site and the Services to you. Upon expiry or termination of this agreement, this right and licence shall end.
The Customer shall not do or attempt to access all or any part of the Site or the Services in order to build a product or service which competes with the Services.
Part E - Term and Termination
These Terms of Service remain effective until all Services have been completed and all the Subscription Periods have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and Services.
To terminate the Services, you must notify us in writing by writing to [email protected]. If you notify us of your intention to terminate the Services during a Subscription Period, the Contract will terminate at the end of relevant Subscription Period and we will continue to provide the Services until the end of the Subscription Period. In no event will any termination relieve the Customer of the obligation to pay any Fees payable to us for the remainder of the current Subscription Period.
Termination for cause
We or the Customer may terminate the Contract on notice to the other party if the other party materially breaches these Terms of Service and such breach is not cured within 5 days of the non-breaching party providing notice of the breach. The Customer is responsible for its Authorised Users, including for any breaches of these Terms of Service caused by its Authorised Users. We may terminate the Contract immediately on notice to the Customer if we reasonably believe that the Services are being used by the Customer or its Authorised Users in violation of any applicable law.
Data storage and deletion
We will store all Customer Data on the Site for so long as you have an active Account.
Upon the cancellation, expiration or termination of the Services or the Contract, Customer Data will be retained in our system, and may be available through our Site for a period of 1 year following termination. If you would like us to provide you with the most recent back-up of the Customer Data, you must contact us in writing and, subject to your compliance with the Terms of Service, we shall use reasonable efforts to deliver (at your cost payable in advance of delivery) that data to you as soon as reasonably practicable.
Parts D (Data and Privacy), E (Intellectual Property) and F (Representations, Disclaimer of Warranties and Liability) and the Governing Law and Jurisdiction clause shall survive any termination of the Contract.
Part F - Representations, disclaimer of warranties and liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION.
Representations, disclaimer of warranties
The Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. The Customer further represents and warrants that it is responsible for the conduct of its Authorised Users and their compliance with these Terms of Service.
Except as expressly provided for in these Terms of Services, the Services and all related components and information are provided on an "as is" and "as available" basis without any warranties of any kind, and we expressly disclaim any and all warranties, whether express or implied, including the implied warranties of merchantability, title, fitness for a particular purpose and non-infringement. The customer acknowledges that we do not warrant the Services will be uninterrupted, timely, secure or error-free.
Limitation of Liability
In no event shall Earthly, its subsidiaries, affiliates or any of their respective employees, officers, directors, agents, partners or Third-Party Content Providers be liable for: (a) loss of contracts; (b) loss of reputation and/or goodwill; (c) loss of profit, loss of revenue, loss of anticipated savings and/or loss of business; or (d) indirect, consequential or special loss, damage or liability even if such loss or damage was reasonably foreseeable, arising out of or in connection with your use of the Site or Services or the performance of our obligations under these Terms of Service or the Contract.
Our total liability under the Contract shall not exceed the total Fees paid the Customer during the 12 months immediately preceding the date on which the liability arises under the contract.
Nothing in these Terms of Service shall exclude or limit the parties' liability for: (a) death or personal injury caused by negligence; (b) for fraudulent misrepresentation; or (c) for any other matter which cannot be excluded by law.
You agree to defend, indemnify and hold harmless Earthly, its subsidiaries and affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including legal fees, arising out of or related to:
fraud you commit or your intentional misconduct or gross negligence in connection with the Services or the Site; or
your violation of any applicable law or rights of a third-party.
Part - G General
You agree that we may use your company name and/or logo in our marketing and publicity material as examples of current users of the Site unless you choose to opt-out by changing your settings on the Site or notifying us by email at [email protected].
Neither we nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism and government action.
As our business evolves, we may change these Terms of Service. If we make a material change to the Terms of Service, we will provide the Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with the Customer's account or by messaging the Customer through the Services. The Customer can review the most current version of the Terms of Service at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Terms of Service will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If the Customer (or any Authorised User) accesses or uses the Services after the effective date, that use will constitute the Customer's acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorised representative of the party being deemed to have granted the waiver.
If any provision (or part of a provision) of the Contract or the Terms of Service is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
The Contract, and any documents referred to in it (including these Terms of Service), constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
You may not assign the Contract or any rights or obligations under the Contract or Terms of Services to any third party without the prior written consent of Earthly.
We may assign the Contract, and we may assign, transfer or subcontract any of our rights or obligations under the Contract, to any third party without the Customer's prior consent.
Governing Law and Jurisdiction
These Terms of Service and all non-contractual obligations arising in any way whatsoever out of or in connection with these Terms of Service are governed by and construed in accordance with English law.
The courts of England have exclusive jurisdiction to settle any claim or dispute (including non-contractual disputes or claims) arising out of or in connection with these Terms of Service or its subject matter.