Earthly Terms of Service - Make Builds Super Simple

2023-08-02

Welcome, and thank you for your interest in Earthly Technologies Inc. (“Earthly Technologies,” “we,” “us” or “our”) and our website at https://www.earthly.dev/, along with our related websites (collectively, the “Site”), networks, interfaces, applications, and other products and services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Earthly Technologies regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY ANSWERING “Y” IN YOUR TERMINAL, CLICKING “I ACCEPT” (OR LANGUAGE TO SIMILAR EFFECT) OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, OUR PRIVACY POLICY, AND API TERMS (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY EARTHLY TECHNOLOGIES AND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND EARTHLY TECHNOLOGIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)

1.Service Overview. Earthly Technologies offers developer tooling. The Service may make available source-available products and services (the “Source-Available Offering”), application programming interface (the “API”), a Software-as-a-Service solution (the “SaaS Offering”), or any other products or services we choose to offer from time to time. The Service may also allow users to view, share, and use certain developer materials such as build logs or artifacts provided by other users (collectively, the “Community Software Components”). Your access to and use of the Service in connection with the Source-Available Offering may be subject to additional terms, such as open source or source-available license(s) (more information here: https://github.com/earthly/earthly) or our Contributor License Agreement. Your use of the API will be subject to our API Terms.
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration

3.1. Individual Accounts. To access certain features of the Service, including the SaaS Offering and the API, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information, and a username.

3.2. Org Accounts. If you are an organization, you may be able to invite other users within your organization (your “Org Users”) to access and use the Service under your organizational account (your “Org Account”), assign certain Org Users administrative access and control of your Org Account, and share certain information, such as artifacts, secrets, or libraries, within your Org Account by assigning permissions to your Org Users. You represent and warrant to us that the person accepting these Terms are authorized by you to register for any Org Account and to grant access and control to your Org Users.

3.3. Your Responsibilities. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times, including with respect to the assignment of any access, control, and permissions under your Org Account. When you register, you will be asked to provide a password. You (and your Org Users, if you have an Org Account) are solely responsible for maintaining the confidentiality of your account, password, and other access control mechanism pertaining to your use of certain features of the Service (such as API tokens), and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@earthly.dev.
4. Payment Terms

4.1. Price. We reserve the right to determine pricing for the Service. We may update our pricing for any feature of the Service or add paid features to the Service, in our sole discretion, if we give you advance notice of changes before they apply.
5. Licenses

5.1. Site. Subject to other terms and conditions of these Terms and your compliance with them, Earthly Technologies grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.

5.2. SaaS Offering. Subject to your complete and ongoing compliance with these Terms, Earthly Technologies grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the SaaS Offering in accordance with any additional terms specific to the tier of service you select. For more information on our SaaS Offering please visit https://earthly.dev/.

5.3. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law or otherwise expressly agreed to in writing between us, you may not: (a) reproduce or distribute the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.

5.4. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Earthly Technologies. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Earthly Technologies are protected by intellectual property and other laws. All Materials included in the Service are the property of Earthly Technologies or its third-party licensors. Except as expressly authorized by Earthly Technologies, you may not make use of the Materials. Earthly Technologies reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms

7.1. Third-Party Services and Linked Websites. Earthly Technologies may provide tools through the Service that enable you to export information, including User Content (defined below), to third-party services. By using one of these tools, you agree that Earthly Technologies may transfer that information to the applicable third-party service. Third-party services are not under our control, and, to the fullest extent permitted by law, we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites, such as GitHub. Linked websites are not under our control, and we are not responsible for their content. Additionally, your access to and use of any such third-party websites, products, or services may be subject to terms of the applicable third-party provider. You agree that we are not responsible and will not be liable for any disputes solely between you and any third-party provider that may arise in connection with or related to your activities on the applicable third-party website.

7.2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. User Content

8.1. User Content Generally. Certain features of the Service may permit users to submit or share content to or via the Service, including Community Software Components, messages, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on or via the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to or via the Service.

8.2. Limited License Grant to Us. By providing User Content to or via the Service, you grant Earthly Technologies a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. If you would like to remove your User Content from the Service, you may submit a support request to us in writing to the address listed in Section 18.6. You acknowledge and agree that it may take us some amount of time to remove your User Content from our systems and servers, and during that time, your User Content may remain accessible or visible to us or other users on the Service. You agree that the foregoing license will remain effective through that period until the User Content is fully removed.

8.3. Limited License Grant to Other Users. Subject to Section 8.4, by providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive, perpetual, irrevocable, worldwide, fully paid, royalty-free license to access and use that User Content as permitted by these Terms and the functionality of the Service.

8.4. Community Software Components. Notwithstanding anything to the contrary in these Terms, if you provide or share Community Software Components on or via the Service, it is your responsibility to include any applicable license in your Community Software Components. On the other hand, if you use any Community Software Component, your use of such Community Software Component will be subject to the applicable license as provided by the publisher of that Community Software Component.

8.5. User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:

a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize us and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by us, the Service, and these Terms;

b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause us to violate any law or regulation; and

c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.

8.6. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. We may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service.

8.7. Monitoring Content. We do not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by our users. You acknowledge and agree that we reserve the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time we choose to monitor the content, we still assume no responsibility or liability for any content or loss or damage incurred as a result of the use of the content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below).
9. Communications

9.1. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE TO COMPLY WITH OUR ACCEPTABLE USE POLICY.
11. Copyright and Intellectual Property Protection

11.1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our designated agent at the following address:
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Earthly Technologies Inc.
Attn: Legal Department (Copyright Notification)
548 Market St, PMB 46629
San Francisco, California 94104-5401
United States
Phone: 773-270-2796
Email: support@earthly.dev
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11.2. Content of Notification. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

b. a description of the copyrighted work or other intellectual property that you claim has been infringed;

c. a description of the material that you claim is infringing and where it is located on the Service;

d. your address, telephone number, and email address;

e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and

f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

11.3. Repeat Infringers. We will promptly terminate the accounts of users that are determined by us to be repeat infringers in accordance with our repeat infringer policy.
12. Modification of Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. To avoid interrupting your ongoing projects, we may choose not to disrupt your use of the Service to present you with the modified Terms. However, in that case, by continuing to run any ongoing project after we have notified you of the changes, you accept the modified Terms. Material modifications are effective upon the earliest of your receipt of notice or acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination, and Modification of the Service

13.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.

13.2. Termination. If you violate any provision of these Terms, your authorization to access and use the Service and these Terms automatically terminate. In addition, we may, at our sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting us at support@earthly.dev.

13.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Earthly Technologies any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Section 5.4, 6, 8.2, 8.3, 8.5, 8.6, 13.3, 14, 15, 16, 17, and 18 will survive.

13.4. Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Earthly Technologies will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Earthly Technologies, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Earthly Technologies Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties

15.1. EXCEPT TO THE EXTENT OTHERWISE AGREED TO BY US IN WRITING, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EARTHLY TECHNOLOGIES DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, COMMUNITY SOFTWARE COMPONENTS, AND ALL OTHER MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EARTHLY TECHNOLOGIES DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, COMMUNITY SOFTWARE COMPONENTS, OR ANY OTHER MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND EARTHLY TECHNOLOGIES DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

15.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR EARTHLY TECHNOLOGIES ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE EARTHLY TECHNOLOGIES ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

15.3. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
16. Limitation of Liability

16.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE EARTHLY TECHNOLOGIES ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY EARTHLY TECHNOLOGIES ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

16.2. EXCEPT AS PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE EARTHLY TECHNOLOGIES ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO EARTHLY TECHNOLOGIES FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.

16.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 16, YOU AGREE THAT YOUR ACCESS TO AND USE OF THE FREE TIER OF THE SAAS OFFERING IS AT YOUR OWN RISK, AND THAT TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE FREE TIER OF THE SAAS OFFERING.

16.4. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration

17.1. Generally. In the interest of resolving disputes between you and Earthly Technologies in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.4, you and Earthly Technologies agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EARTHLY TECHNOLOGIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

17.2. Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

17.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Earthly Technologies Inc., Attention: Legal Department – Arbitration Opt-Out, 548 Market St, PMB 46629, San Francisco, California 94104-5401, United States, that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

17.4. Arbitrator. Any arbitration between you and Earthly Technologies will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 Earthly Technologies. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

17.5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Earthly Technologies Inc., 548 Market St, PMB 46629, San Francisco, California 94104-5401, United States. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Earthly Technologies may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Earthly Technologies must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Earthly Technologies in settlement of the dispute prior to the award, Earthly Technologies will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.

17.6. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Redwood City, California, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

17.7. No Class Actions. YOU AND EARTHLY TECHNOLOGIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Earthly Technologies 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.

17.8. Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

17.9. Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18. Miscellaneous

18.1. General Terms. These Terms, including the Privacy Policy and API Terms, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Earthly Technologies regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

18.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Earthly Technologies submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

18.3. Privacy Policy. Please read the Earthly Technologies Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

18.4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service or these Terms (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. In the event of conflict or inconsistency, product or service-specific terms will take precedence over these Terms solely to the extent applicable to such product or service and the remainder of these Terms will have full force and effect.

18.5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

18.6. Contact Information. The Service is offered by Earthly Technologies Inc., located at 548 Market St, PMB 46629, San Francisco, California 94104-5401, United States. You may contact us by sending correspondence to that address or by emailing us at support@earthly.dev.

18.7. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

18.8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

18.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.