Last Modified: 11/12/2020
Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.
Please read these Terms carefully to ensure that you understand each provision. These Terms contain a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
- Use of Our Service
- Eligibility. This is a contract between you and Earth & Star. You must read and agree to the terms and conditions of these Terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Earth & Star, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by us.
- Our Service. Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. Earth & Star reserves all rights not expressly granted herein in the Service and the Earth & Star Content (as defined below). Earth & Star may terminate this license at any time for any reason or no reason.
- Service Rules. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Earth & Star servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Earth & Star grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Earth & Star Site for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personal information from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
- Changes to the Service. We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
- Your Earth & Star account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open an Earth & Star account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
- You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Earth & Star immediately of any breach of security or unauthorized use of your account. Earth & Star will not be liable for any losses caused by any unauthorized use of your account.
- You may control your User profile and how you interact with the Service by changing the settings in your settings page. By providing Earth & Star your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences via our unsubscribe link. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
- User Content
We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you (i) submit or post on or through the Service, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, Tumblr and Pinterest, which are tagged with any Earth & Star promoted hashtag (collectively “User Content”) shall be deemed nonconfidential and nonproprietary. By submitting or posting any User Content, you grant to Earth & Star and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Earth & Star will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Earth & Star shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Earth & Star retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
By submitting or posting User Content on the Service, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by Earth & Star, you will furnish Earth & Star any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold Earth & Star and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Earth & Star does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge Earth & Star and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by Earth & Star or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Earth & Star has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Earth & Star acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If Earth & Star becomes aware of any User Content that allegedly may not conform to these Terms, Earth & Star may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Earth & Star has no liability or responsibility to Users for performance or nonperformance of such activities.
Earth & Star has the absolute right to remove and/or delete without notice any User Content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against Earth & Star for such removal and/or deletion. Earth & Star is not responsible or liable for failure to store posted content or other materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or platforms.
- Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music, and User Content belonging to other Users (the “Earth & Star Content”), and all intellectual property rights related thereto, are the exclusive property of Earth & Star and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Earth & Star Content. Use of the Earth & Star Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation about how to improve the Service or our products and/or about how to partner with us (“Input”). By submitting any Input, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Earth & Star under any fiduciary or other obligation, and that we are free to use the Input without any additional compensation to you, and/or to disclose the Input on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Earth & Star does not waive any rights to use similar or related ideas previously known to Earth & Star, or developed by its employees, or obtained from sources other than you.
- Order and Payment Terms
- Placing an Order. After you place an order, we will review the information you provided for validity by verifying your method of payment, billing, and/or shipping address. Orders may not be accepted for delivery to certain addresses and territories based upon your location. We may contact you (via email) if additional information is required to accept and process your order. Invalid order information may result in delays processing your order. For Product purchases, your receipt of an order confirmation does not constitute Earth & Star’s acceptance of your order. Without prior notification, Earth & Star maintains the right to limit the Product order quantity and the right to refuse to sell Products to any User for any reason or no reason at all. Earth & Star reserves the right not to sell to resellers, dealers, or distributors. If your order is canceled, we will attempt to notify you using the email address you have given us with the order.
- No Sales to Children. Earth & Star does not sell products through its Service for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Service only with the involvement and consent of a parent or legal guardian.
- Payment Methods. We accept various payment methods for Product purchases through our Service, including Mastercard, Visa, and American Express. We will bill your chosen payment method when you place an order for a Product through the Service. Earth & Star will not fulfill any Product order without authorization validation of your purchase from your chosen payment method. We currently use Shopify Payments and PayPal as our third-party service providers for payment services. By using our Service, you agree to be bound by the terms of our payment processors, as applicable. Agreements with our payment processors can be found on their respective websites.
- Offers and Offer Codes. You acknowledge and agree that any offers made available through the Service are subject to change at any time and from time to time. From time to time, we may offer qualified consumers offer codes (“Offer Codes”) through various communications and advertising channels that are redeemable towards a purchase on the Service, while supplies last, and subject to certain product exclusions or any other restrictions as determined and communicated by us in our sole discretion. Only valid Offer Codes provided by us and fulfilling the terms of such Offer Code will be honored at checkout. Offer Codes supplied by a third party unauthorized to provide such Offer Codes by us will not be considered valid. Each Offer Code is non-transferable and valid for single use on an item as provided in the terms and in our sole discretion. Offer Codes cannot be used towards taxes. The Offer Code must be provided in the applicable box at checkout when purchasing the product. We are not responsible for lost, stolen or corrupted Offer Codes or any unauthorized use of the Offer Codes. Offer Codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any Offer Code will not be refunded or credited back as part of a Product refund. Offer Codes may have expiration dates and we may decide to stop accepting any Offer Codes or stop any promotion at any time in our sole discretion. Offer Codes are void if copied, transferred, sold, exchanged or expired and where prohibited. Requests not complying with all terms and conditions of the Offer Codes will not be honored.
- Brand Ambassadors. From time to time, we may also engage brand ambassadors, spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an Offer Code via a third-party source, such as a social media brand ambassador, please note that such individuals may have been compensated by us for their statements.
- Product Descriptions. We have endeavored to be as accurate as possible in describing and displaying the Products made available for purchase through the Service; however, there is no warranty or guarantee that our descriptions of the Products’ colors, tastes, textures, or smells, or other content on the Service is accurate, complete, reliable, current, or error-free.
- Shipping. When you purchase Product(s) through the Service, we will ship the Product(s) you purchase via the shipping method of our choice, on such other terms and conditions (such as applicable shipping and handling fees) that we may disclose to you at the time of your purchase. We do not guarantee the services of any shipping service, and delivery dates and times are estimates and are not guaranteed. We will, however, use commercially reasonable efforts to dispatch the Product to you as soon as reasonably possible after you place your order. During busy times, such as holiday periods and periods of inclement weather, there may be additional processing and shipping delays. You agree to not hold Earth & Star liable for any shipping issues. Most package carriers have a short time frame in which to initiate claims. We recommend that you inspect your package for damage immediately upon arrival. If there is a problem, contact the delivery service immediately to resolve any problems. Unless otherwise provided by notice from Earth & Star, all Products are shipped F.O.B. from any place we designate the Products to leave. At our discretion, we may choose to halt, or alter, the delivery of an order, even though it is in the hands of a delivery agent or shipping company. We may do this as a customer service or in cases where we suspect fraud. You agree to pay any additional charges that may arise due to circumstances in which we take such action.
- Subscription process, auto-renewal and cancellation.
- Subscription Products; Subscription Fees. Earth & Star may make certain Products available on an automatically renewing subscription basis (such Earth & Star Products, the “Subscription Products”) for recurring fees (“Subscription Fees”). We will provide you with your Subscription Fee at checkout before you enroll in the Subscription and will send you a confirmation email with the terms of your subscription. We may make any Products available on a subscription basis, discontinue subscriptions for Subscription Products, or add or amend the Subscription Fees at our sole discretion. When we add or amend the Subscription Fees, we may update our Order and Payment Terms. Any change to our Order and Payment Terms shall become effective in the Subscription Term (as defined below) following notice of such change to you as provided in this Agreement; provided however, that if we have offered a specific duration and Subscription Fees for your use of the Subscription Products, we agree that the Subscription Fees will remain in force for that duration. YOUR SUBSCRIPTION TO THE SUBSCRIPTION PRODUCTS WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDER FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION PRODUCTS IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 5(H)(4) OF THIS AGREEMENT.
- Automatic Billing and Policies. When you purchase Subscription Products, you expressly acknowledge and agree that: (1) Earth & Star and/or its third-party payment processors are authorized to charge you at the beginning of each Subscription Term the Subscription Fees for your Subscription Products identified in your order, any applicable taxes, and any other charges you may incur in connection with your purchase and use of the Subscription Products, subject to adjustment in accordance with the terms and conditions of this Agreement, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or the Subscription Products or your subscription to the Subscription Products is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in the Subscription Fees for Subscription Products in accordance with Section 5(H)(1), and changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts.
- Cancellation Procedure. To cancel your subscription to the Subscription Products, you must notify us at least fourteen (14) days before the start of the next Subscription Term by contacting us at email@example.com.
- Cancellation and Missed Payments Penalty. You may cancel your subscription to the Subscription Products at your sole discretion; however, Earth & Star grants refunds for cancellation at its sole discretion and you acknowledge and agree that you may not be refunded any Subscription Fees for your cancellation of your subscription to the Subscription Products. IN THE EVENT THAT: (i) Earth & Star SUSPENDS OR TERMINATES YOUR SUBSCRIPTION TO THE SUBSCRIPTION PRODUCTS, YOUR USER ACCOUNT OR THIS AGREEMENT FOR YOUR BREACH OF THIS AGREEMENT; OR (ii) YOU CANCEL YOUR SUBSCRIPTION TO THE SUBSCRIPTION PRODUCTS, YOU UNDERSTAND AND AGREE THAT YOU SHALL RECEIVE NO REFUND FOR ANY PRE-PAYMENTS MADE FOR YOUR SUBSCRIPTION PRODUCTS.
- Refunds. We offer a 60-day money back guarantee if you are not completely satisfied with your purchase. If you would like to receive a refund, please contact us at firstname.lastname@example.org within 60 days of receipt of the Product and include your name, contact information, order number, and your reason for seeking a refund. We may also request that you furnish such other written evidence or other documentation as may be reasonably required by us, such as proof of purchase. Please note that refunds requested after 60 days of the original purchase will be issued by us in our sole discretion and eligible for store credit only. Except as provided under this section, all orders are final and non-refundable and you have no right to return products purchased under these Terms to us. For more information on returns please see our Shipping and Returns policy available at https://earthandstar.com/pages/shipping-returns.
- California Residents. The provider of services is FunGals, LLC, 360 Furman Street, Brooklyn NY 11201 email: email@example.com. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
- Text Messaging
You may sign up to receive certain Earth & Star notifications or information via text messaging. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
Earth & Star cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
- Copyright Policy
It is our policy to respond to alleged copyright infringement notices. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Earth & Star using our contact information in this section. Please be sure to include the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Earth & Star to contact you, such as your address, telephone number, and, email address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to our attention below:
Attn: FunGals, LLC
Address: 360 Furman Street,
Brooklyn, NY 11201
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Earth & Star and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Earth & Star’s rights and obligations under applicable law, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under applicable laws.
In accordance with applicable law, Earth & Star has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Earth & Star may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Third-Party Links and Information
You agree to defend, indemnify and hold harmless Earth & Star and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; or (vi) your willful misconduct.
- No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk and Earth & Star does not make any representations regarding the safety or quality of the Products. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Earth & Star or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Earth & Star, its subsidiaries, its affiliates, and its licensors do not warrant that the Earth & Star content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Earth & Star does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and Earth & Star will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above 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 disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.
- Disclaimer of Medical Liability
Earth & Star does not provide medical advice. All information given is not intended to diagnose, treat or cure any condition or individual. The Service is for general informational purposes only. The Service is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Unless otherwise stated, statements about products and health conditions have not been evaluated by the U.S. Food & Drug Administration. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. ALWAYS SPEAK WITH A PRACTITIONER BEFORE MAKING ANY CHANGES TO YOUR DIET OR NUTRITION. Never disregard professional medical advice or delay in seeking it because of something you have read on our Service. If you think you may have a medical emergency, call your physician or 911 immediately. Earth & Star does not recommend or endorse any specific tests, products, procedures, opinions, or other information that may be mentioned on the Service. Reliance on any information provided by Earth & Star or our employees, other people appearing on the Service at the invitation of Earth & Star, or other visitors to the Services is solely at your own risk.
- Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Earth & Star, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, inability to use, or reliance on information posted to, the Service. Under no circumstances will Earth & Star be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service.
To the maximum extent permitted by applicable law, Earth & Star assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through the Service by any third party; (vi) any errors or omissions in any content 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 Service; and/or (vii) user content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Earth & Star, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Earth & Star hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Earth & Star has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states 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 disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.
The Service is controlled and operated from facilities in the United States. Earth & Star makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND EARTH & STAR TO ARBITRATE THEIR DISPUTES AND LIMITS THE AVAILABILITY OF A JURY TRIAL.
- Arbitration: Both you and Earth & Star agree to resolve by binding arbitration any claim, dispute, or controversy (whether based in contract, tort, statute, or any other legal theory) arising out of or in connection with or relating to (1) the Service, your use of the Service, or the information that you provide Earth & Star in connection with your use of the Service, or (2) these Terms, including without limitation, the validity, interpretation, enforcement, or application of these Terms and/or this Governing Law, Arbitration, and Class Action/ Jury Trial Waiver section (collectively, “Claims”). Both you and Earth & Star further agree that the arbitrator will also have the exclusive authority to determine all additional threshold arbitrability issues, including without limitation issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
- Class Action Waiver: YOU AND EARTH & STAR AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT IN ANY REPRESENTATIVE CAPACITY, INCLUDING A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR ANY OTHER REPRESENTATIVE PROCEEDING WHATSOEVER. Further, unless both you and Earth & Star agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. Any determination about the validity, interpretation, enforcement, and/or application of this Class Action Waiver paragraph is delegated to the arbitrator.
- Jury Trial Waiver: YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND EARTH & STAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW.
- Arbitration Procedure: A party who intends to seek arbitration must first send a written notice of the Claim to the other party by certified mail or Federal Express, or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for notice is firstname.lastname@example.org. You and Earth & Star agree to use good faith efforts to resolve the Claim, but if the parties do not resolve the Claim within 30 days of the Notice, then either party may commence arbitration. Any arbitration between you and Earth & Star will be governed by the American Arbitration Association (“AAA”) Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Earth & Star. Unless you and Earth & Star otherwise agree, the arbitration will be conducted in the county where you reside. If your claim is for less than $10,000, Earth & Star will reimburse your filing fee, unless the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose, in which case the payment of all fees will be determined in accordance with the AAA Rules. If your claim is for greater than $10,000, the payment of all fees will be determined in accordance with the AAA Rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Exceptions: Notwithstanding anything else in this Agreement to the contrary, you and Earth & Star both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, provided that is the sole form of relief sought, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Governing Law / Forum Selection: The parties agree that this Agreement evidences a transaction involving interstate commerce, and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) and AAA Rules will govern interpretation and enforcement of this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section where applicable. All other claims, disputes, or controversies will be resolved under the laws of the State of New York, without respect to its conflict of laws principles. For any claims, disputes or controversies that are not subject to mandatory arbitration under this section, you and Earth & Star agree that (i) a federal or state court located in Kings County, New York will be the sole and exclusive forum for resolution of the claim, dispute or controversy, and you and Earth & Star irrevocably submit to the jurisdiction of the federal and state courts located in New York County, New York, and (ii) litigation of any claim, dispute, or controversy proceeding in court will be stayed pending the outcome of any related individual Claim in arbitration.
- Severability / Survival: If any clause or provision set forth in this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section is determined to be illegal, invalid or unenforceable under present or future law, then the clause or provision so determined to be illegal, invalid or unenforceable will be severable without affecting the enforceability of all remaining clauses or provisions. This Governing Law, Arbitration, and Class Action/Jury Trial Waiver section will survive any termination or expiration of this Agreement.
- Changes and Opt-out: You may opt out of the applicability of this Governing Law, Arbitration, and Class Action/Jury Trial Waiver section by providing Earth & Star a written opt-out notice within 30 days of the “Effective Date” above. This written notice must be provided by mail to: FunGals, LLC, 360 Furman Street, Brooklyn, NY 11201. In order to be effective, this notice must include your full name and clearly indicate your intent to reject the changes to this Agreement.
- Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Earth & Star without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with Earth & Star in connection with the Service, shall constitute the entire agreement between you and Earth & Star concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration provision shall be unenforceable.
- No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Earth & Star’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- Contact. Please contact us at email@example.com with any questions regarding these Terms.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Brooklyn, New York before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Earth & Star’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.