Terms & Conditions - EarthTech

Terms & Conditions

Terms & Conditions

Introduction

Welcome to the EarthTech Impact Investment Platform (Platform) which is accessible via this website. The Platform connects impact ventures with impact investors and major organisations globally. We do this to scale sustainable innovations and track the positive impact in accordance with the United Nations Sustainable Development Goals.

By using the Platform or this website, including by simply viewing information, text, graphics, or other materials uploaded, downloaded or otherwise appearing on the website or Platform (Content), you are agreeing that you, and each person you allow to access the Platform through your account, will abide by the terms of these terms and conditions (Agreement).

This Agreement is between EarthTech Ventures Pty Ltd ABN 96 632 785 669 (EarthTech, we, us, our) and the party agreeing to these terms (User, you or your). This Agreement governs your access to and use of the Platform, services, website and applications offered by EarthTech (together, the Services). By accessing or using the Services, you accept the terms and conditions of this Agreement, acknowledge that you have read and understand this Agreement, and agree to be bound by this Agreement.

Users of this website may open an account as a Venture, an Investor or an Innovation Platform, or they may view content made available to the general public (each of which is a User).

The EarthTech Impact Platform is designed to help facilitate connections between project/ venture owners and investors and innovation platforms/ accelerators etc that are searching for projects/ ventures that meet their specific requirements. The Platform is specifically designed to be an efficiency mechanism for both sides, helping projects/ ventures to streamline their investment readiness journey and help investors and innovation programs to streamline their deal origination and dealflow processes. Each party is responsible for the accuracy and trustworthiness of the information provided and for doing their own due diligence on parties they may wish to negotiated and do deals with, in accordance with the laws and regulations applicable to them.

Ventures if you are an impact-focused venture with an idea, team and strategy and seek financial and non-financial support from sophisticated investors and innovation programs, you are welcome to apply to open an account as a Venture user. Ventures may upload information about their business plan to the Platform, which is designed to present your information to investors and innovation programs in a way that helps them make decisions. You are also able to invite your own eco system of supporters into your profile to provide you with advise and feedback and improve your investment readiness. Ventures should be aware that information they upload to the Platform will be visible to sophisticated Investors, organisations and Innovation Platform users, whose specific investment/ selection criteria aligns to your Venture’s unique taxonomy.

Investors: if you qualify as an Exempt Investor and you have a mandate to invest in and support impact-focused ventures to help them scale for people, planet and prosperity, you are welcome to apply to open an account as an Investor user. An individual or entity will be an Exempt Investor for the purposes of this Agreement and the Platform if they are an institutional, sophisticated, professional or wholesale investor (howsoever described under applicable securities laws) who is permitted to invest in Ventures without contravening any applicable legal or regulatory restriction and in relation to whom regulated disclosures, registration or other regulatory requirement are not required or are otherwise applicable in connection with any advice, dealing, invitation, offer or issue of securities in the jurisdiction in which they reside under all securities laws which apply to them. Investors must carefully consider whether they qualify as an Exempt Investor. EarthTech is not responsible for and does not verify whether you are an Exempt Investor. Investors must ensure that at all times while they use the Services they qualify as an Exempt Investor. Investor users may articulate their investment mandate/s within the platform and receive alerts as and when ventures who align to your mandate establish a profile or update their information, which has key revenue/ customer/ impact results. You may review the information presented by the venture, invite your investment committee into the platform to help review ventures and reach out to ventures to set up a meeting, with an agenda customisable by you. All due diligence, negotiations and completion any transactions are your responsibility. By opening an account and using the Platform or this website as an Investor, you agree and acknowledge that you are an Exempt Investor.

Innovation Platforms: if you are an incubator, accelerator, venture studio or other organisation that seeks to find and support Ventures, and engage with mentors and investors to help chosen Ventures scale, you are welcome to apply to open an account as an Innovation Platform user. Innovation Program users may articulate their programs selection criteria within the platform and receive alerts as and when ventures who align to your selection criteria establish a profile or update their information, which has key revenue/ customer/ impact results. You may review the information presented by the venture, invite your selection committee into the platform to help review ventures and reach out to ventures to set up a meeting, with an agenda customisable by you. All due diligence, negotiations and completion any transactions are your responsibility.

General: certain portions of the website will be visible to users who have not signed up as a Venture, Investor, or Innovation Platform user. Those users, nevertheless, are bound by this Agreement.

IMPORTANT NOTICES

  • In providing the Services or making the Services available, EarthTech does not:
    • provide any financial product advice or investment advice in relation to any financial product (including securities, debentures, notes, or any other kinds of interests in any entity or collective investment vehicle), whether in relation to a Venture or otherwise (Financial Product);
    • offer to issue or sell any Financial Product;
    • acquire, vary, dispose of or otherwise deal in any Financial Product;
    • arrange for a person to apply for, acquire, vary or dispose of any Financial Product;
    • underwrite the issue of any Financial Product;
    • hold or otherwise have custody of any Financial Product; or
    • provide or make available any regulated financial services of any kind.
  • The role of EarthTech as provider of the Services is limited to facilitating access to information provided by Ventures to Investors and Innovation Platforms. The Platform does not facilitate the making of any investment in, or the subscription for any interest in, a Venture. EarthTech will not be involved in negotiating the terms of any investment or other support and is not otherwise actively involved in bringing about any transaction between Ventures, Investors or Innovation Platforms.
  • EarthTech does not promote or provide any recommendation or opinion in relation to investment opportunities or nor does EarthTech endorse, support, verify, represent or guarantee the completeness, truthfulness, accuracy or reliability of any Content or communications posted via the website or Platform or endorse any opinion or other statements expressed in the Content. To the maximum extent permitted by law, EarthTech disclaims all liability for any loss or damage which may be suffered by any User through relying on anything contained in or omitted from the website or the Platform or in connection with the provision of the Services.
  • The information or resources provided to Users are not a substitute for professional advice, and you should obtain professional advice before making any decision about any Financial Product or about any Venture.
  • In making information available to Users in connection with the Services, EarthTech has not taken into account your personal objectives, financial situation or needs.
  • Significant regulatory considerations apply in relation to Financial Products and fundraising processes and Users should ensure they comply with all applicable regulatory requirements if they engage with other Users or other persons in connection with the issue or sale of Financial Products.

1. YOUR ACCESS TO THE PLATFORM

  • Each Venture, Investor or Innovation Platform User will be entitled to receive benefits associated with membership of the Platform, which includes receiving communications, accessing information relevant to your type of membership and the ability to manage details relating to your membership that you hold with us, which is designed to create efficiencies and to streamline your workflow processes as you seek ventures/ projects or programs/ investors to do deals with.
  • Information about each Venture presented will include material that the Venture has uploaded to the Platform which may include a combination of pitch deck, financial model, one pager, team member bios, revenue, customer and impact forecasts and accruals, technology/ product/ service models and strategy for growth and impact.
  • Information about each Venture may include investment terms set by the Venture. EarthTech does not perform due diligence on any Venture or any investment opportunities with respect to any Investor and does not discuss or provide any guidance on valuation, pricing or other terms of any investments with Ventures, Investors or Innovation Platforms.
  • Other than facilitating access to information supplied by a Venture, EarthTech does not facilitate any form of transaction between Ventures, Investors or Innovation Platforms and it is up to those parties to determine the terms of any arrangement and undertake any transactions.
  • Conditions of a Venture, Investor or Innovation Platform User’s ongoing membership of the Platform and entitlement to the above benefits are that:
    • you pay to us the subscription fee as determined by EarthTech from time to time (the subscription fees applying to different Users can be viewed on the Pricing Page on our public website and may change from time to time;
    • you comply with this Agreement;
    • you comply with any other requirements as stipulated by EarthTech from time to time;
    • you comply with all applicable laws, rules and regulations; and
    • you do not use or attempt to use the Platform or this website to send or post any unsolicited messages or any offensive, inflammatory, defamatory, fraudulent, or otherwise unlawful information, reviews or opinions.
  • We may change the benefits you receive from time to time and we will notify current Users of any changes.

2. YOUR OBLIGATIONS AS A USER

  • To Act Responsibly. You agree to act responsibly when using the Services, which means you agree that you:
    • Requirements to use the Services
      • have the right, authority, and capacity to enter into this Agreement on your own behalf and on behalf on any entity for whom you are acting and to abide by all of the terms and conditions contained herein, and that if any aspect of your participation in or use of the Services violates provisions of the law to which you are subject, you will cease using the Services and close your account;
      • if you are an individual, are at least 18 years old;
      • will not use a false or deceptive name or email address owned or controlled by another person with the intent to impersonate that person or for any other reason;
      • will not use a User ID name that is subject to any rights of a person other than yourself without appropriate authorisation;
      • will be solely responsible for maintaining the confidentiality of your password, not sharing your password with any unauthorised person, not allowing any unauthorised person to watch you login to your account and logging out of the account as soon as you have finished accessing it. EarthTech will assume that you are the authorised user whenever your security credentials are used to access the Platform. You agree to notify us immediately if you become aware of any unauthorised access to or use of your membership password or account;
      • will update your registration information with EachTech as needed so that it remains true, correct and complete; and
      • will conduct yourself in a professional manner in all your interactions with the Services, EarthTech and with any other User.
    • Requirements related to Content on EarthTech
      • will only provide EarthTech with Content that you have a right to provide to EarthTech and to allow EarthTech to display through the Services,
      • have adequate rights to all copyrights, trademarks, trade secrets, intellectual property or other material provided by you for display, publication or use by EarthTech or in respect of the Services.
      • are responsible for retaining and backing up any Content and data uploaded to the Platform, and that EarthTech will not be liable for any loss or corruption of Content and data or for any costs or expenses associated with backing up or restoring Content and data;
      • understand that any other Content you find on or through the Services is the sole responsibility of the person who originated such Content;
      • understand that your Content may be republished and if you do not have the right to submit Content for such use, it may subject you to liability, and that EarthTech will not be responsible or liable for any use of your Content by EarthTech or Users in accordance with this Agreement;
      • are not relying on EarthTech to, and that you understand that we do not, endorse, support, verify, represent or guarantee the completeness, truthfulness, accuracy or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services;
      • understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, and that you have no claim against EarthTech for any such material; and
      • understand that the Service may include advertisements or other similar items, which may be related to Content, queries made through the Services, or other information, and you have no claim against EarthTech for the placement of advertising or similar content on the Services or in connection with the display of any Content or other information from the Services.
    • Requirements related to engaging with other Users and investments
      • acknowledge that EarthTech does not provide financial product advice or investment advice in relation to any Financial Product;
      • acknowledge that EarthTech does not offer to issue or sell any Financial Product;
      • acknowledge that EarthTech does not acquire, vary, dispose of or otherwise deal in any Financial Product;
      • arrange for a person to apply for, acquire, vary or dispose of any Financial Product;
      • acknowledge that EarthTech does not underwrite the issue of any Financial Product;
      • acknowledge that EarthTech does not hold or otherwise have custody of any Financial Product; or
      • acknowledge that EarthTech does not provide or make available any regulated financial services of any kind.
      • will carefully review and assess any information included on the Platform or the website in respect of a User before deciding to engage with a User;
      • will use your own judgment before making any decision to invest or to accept an investment involving what is to you a material amount of money;
      • will be solely responsible for complying with applicable law regarding any transaction, including without limitation the determination of whether any investor is an Exempt Investor under applicable local law (whether under the laws of Australia or any other jurisdiction which may apply to a User);
      • will obtain such professional advice as is appropriate to protect your interests, including legal, tax, accounting and other advice; and
      • are aware of the risks of making investments, and that EarthTech does not recommend or represent investment opportunities and you should accordingly undertake your own due diligence and ensure legal and financial compliance for each investment opportunity that you consider.
  • Indemnify EarthTech and Related Parties. You are promising to hold EarthTech harmless against any damage that may happen to us as a result of your use of the Services.
    • Indemnity. You agree to indemnify and hold EarthTech and any Relevant Person harmless (including against costs and legal fees) from any liabilities, losses, damages, claim, action or demand, penalty, fine, costs and expenses (including legal fees and expert fees) arising from or related to any claim or demand made by any third party due to or arising out of your access to or use of the Services, the violation of this Agreement by you, the infringement or misappropriation by you, or any third party using your account, of any intellectual property or other right of any person or entity, or for any Content posted through the Services by you (including claims related to defamation, invasion of privacy or other violation of a person’s rights). A Relevant Person is EarthTech, an affiliate of EarthTech or any employee, officer, director, representative or other agent of the foregoing. Your obligations under the foregoing indemnity may not be offset against any other claim you may have against EarthTech or any Relevant Person. You remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services. You agree that the provisions in this paragraph will survive any termination of your account(s) or the Services. You agree to cooperate with any reasonable requests to assist EarthTech’s defense of such claim, suit or demand.
    • Release. You hereby release any claims you may have against EarthTech and any Relevant Person that are in any way related to the Services or your use of Content, including any representations, recommendations or referrals you may receive as a result of your registration with EarthTech. You are solely responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and third party partners.
    • EarthTech Relevant Persons. You understand that Relevant Persons may participate in the Services as Users, and that EarthTech is not responsible for any of their activities, including statements or other information in any emails or other communications such individuals make in that capacity.
  • Other User Obligations
    • You promise to comply with the terms of the licence set out in 4 (Licence to use the Services) of this Agreement.
    • You are licensing to us the right to publish all Content you upload to the Platform or website, including any comments or other forum posts you may offer on the website in order to provide the Services. Your Content will be viewable by other users of the Services. You should only provide Content that you are comfortable sharing with others.
    • To the extent that EarthTech is determined, for any reason, not to be the licensee of any material you have provided to us, including all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively. Moral Rights), you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by or authorised by EarthTech and agree not to assert any Moral Rights with respect thereto. You further agree that you will confirm any such ratifications, consents and agreements from time to time as requested by EarthTech.
    • You acknowledge that EarthTech is not obligated to pay you or to cause any other party to pay you any compensation with respect to your activities on the Platform or website, or to feature or otherwise display your Content on any web page
    • You acknowledge that you do not rely on EarthTech to monitor or edit the Services (including emails initiated by individuals, regardless of whether those individuals are otherwise associated with EarthTech) and that the Services may contain Content which you find offensive or which is untrue or misleading and you hereby waive any objections and claims you might have with respect to viewing such content.
    • You agree that this Agreement does not entitle you to any support, upgrades, updates, add-ons, patches, enhancements, or fixes for the Services (collectively, Updates). EarthTech, however, may occasionally provide automatic Updates to the Services at its sole discretion (and without any advance notification to you). Any such Updates for the Services shall become part of the Services and subject to this Agreement.
    • You acknowledge that EarthTech may generate data that has been de-identified, anonymized and aggregated with other de-identified, anonymized data (including from other Users) based on Users’ use of the Services and use such data for any of the following purposes:  internal research and development; development of tools, methodologies, algorithms and processes; machine learning; risk management; fraud prevention; enhancing products, services and features; developing new products, services and features; and conducting and furthering EarthTech’s business.
    • You agree not to:
      • violate EarthTech’s User Pledge, available on our public website;
      • expect EarthTech to evaluate, confirm or otherwise stand behind any User’s statements, information or opinions;
      • expect EarthTech to recommend any investment in any Financial Product;
      • treat any Content, email or other information you receive as a result of your access to the Services as a recommendation or representation of any kind by a Relevant Person on which you should rely;
      • claim any ownership or other proprietary right in any material, software or other intellectual property displayed on, published by or otherwise available through the Platform or website, other than Content, software or intellectual property that you own or otherwise have rights to without regard for its appearance on the Platform or website;
      • copy or distribute Content or share any Content outside of the Platform except as specifically allowed in this Agreement;
      • claim any right to access, view or alter any source code or object code of EarthTech;
      • use or require EarthTech to promote or provide services, particularly investment advisory services, that might require EarthTech to comply with any laws of any jurisdiction in relation to the registration or licensing of EarthTech in connection with such services, including obtaining an Australian financial services licence from the Australian Securities and Investments Commission or registration as a as a broker dealer or investment adviser with the Securities and Exchange Commission of the United States of America (or an exemption from such requirements); or
      • market or promote competing services to people you’ve identified through EarthTech.

3. PRIVACY AND PROTECTION OF PERSONAL INFORMATION

  • Privacy Policy. EarthTech values your privacy. Please review our Privacy Policy on our public website] to learn more about how we collect and use information about you via the Services. The Privacy Policy explains how EarthTech treats your personal information and protects your privacy when you access EarthTech and use the Services.
  • Amendments to the Privacy Policy. We may amend the Privacy Policy at any time in our sole discretion, effective upon posting the amended Privacy Policy on our public website where the prior version of the Privacy Policy was posted, or by communicating these changes through any written or other contact method we have established with you. Your use of the Services following the date on which such amended Privacy Policy is published will constitute consent to such amendments to the extent they do not have retroactive applicability.

4. LICENCE TO USE THE SERVICE

  • Licence to use the Service. All right, title, and interest in and to the Services (excluding Content provided by Users) is and will remain the exclusive property of EarthTech and its licensors. The Services are protected by copyright, trademark, and other laws of both Australia and foreign countries. Except as expressly provided herein, nothing in this Agreement gives you a right to use the EarthTech name or any of the EarthTech trademarks, logos, domain names or other distinctive brand features. Subject to your acceptance and the terms of this Agreement, EarthTech grants to you a non-assignable, non-exclusive, non-transferable, non-sublicensable, revocable limited license to use the Services and related software, during the subscription term.
    • do not modify the Content, except as described below;
    • attribute EarthTech with a human and machine-followable link (an anchor tag) linking back to the page displaying the original source of the Content on EarthTech;
    • make a reasonable effort to update a particular piece of Content to the latest version on EarthTech; and
    • make a reasonable attempt to delete Content that has been deleted by EarthTech.
  • No Claim to Any Rights in Your Information. We are promising not to claim any ownership interest in the Content provided by you to us solely because you have provided it, although we will claim a licence sufficient to display such items through the Platform and website in connection with our Services.
  • Company Will Display Content and Allow Communications Based on Filters. When you create an account with EarthTech, and at any time thereafter, you are able to set a variety of filters that are intended to control who can see your information and what information you will be shown. We promise not to intentionally violate those filters, although you must recognize that we cannot guarantee that there will never be a software bug or a hacker attack that will allow unauthorised viewing of material or unsolicited contacts to occur.

5. RESERVATION OF EARTHTECH’S RIGHTS

  • Right to Control Content and manage the Service. EarthTech reserves the right to access a User’s account as necessary in order to provide the Services.  EarthTech may, but is not required to, monitor or control the Content posted via the Services. Our failure to exercise this right does not give you any right to make a claim against EarthTech. Any Content that has been uploaded through the Services may be deleted at any time without notice to you. EarthTech may, without prior notice, report to law enforcement authorities and/or take legal action against anyone who violates this Agreement or manage the Services in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service.
  • Right to Discontinue the Services. EarthTech reserves the right to discontinue the Services or to change the Services in any way and at any time, with or without notice to you, without liability.
  • Right to Terminate User Access. EarthTech reserves the right to terminate or suspend your access to the Services without notice and, if you violate this Agreement, to pursue other remedies at law or in equity. We may, in our sole and absolute discretion, delete your account and if we delete your account you will lose all access to any information, connections or other features that may have value to you that may have been associated with your account.
  • Right to Refuse or Cancel Registration. EarthTech has the right to refuse registration of or cancel your user account in its sole and absolute discretion. In addition, EarthTech reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate Users and/or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information (including Content) as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement (including investigation of potential violations hereof); (iii) detect, prevent or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of EarthTech, its Users and the public.
  • Comments, Feedback, Suggestions, Ideas, And Other Submissions. The Services may invite you to chat or participate in blogs, message boards, and other functionality and may provide you with the opportunity to create, submit, post, transmit, publish or distribute Content to EarthTech or to/via the Services. Any such material you transmit to EarthTech or otherwise through the Services will be treated as non-confidential and non-proprietary and we are not obligated to maintain the confidentiality of any Content you give us. [HW Note: ET to confirm that any information included on the platform will be considered non-confidential. We have not included any obligations of confidentiality in these terms on that basis, but please let us know if such obligations should be imposed.] All comments, feedback, suggestions, ideas, forum posts and other submissions disclosed, submitted or offered in connection with the use of the Services or otherwise, and any chat, blog, message board, online forum, text, email or other communication with EarthTech, is hereby licensed by you to EarthTech on a nonexclusive, worldwide, royalty-free, perpetual, transferable and fully sublicensable basis. For more information, see our Privacy Policy.

6. LIMITS ON EARTHTECH’S OBLIGATIONS

  • Introductions. We are not obligated to introduce you to any Venture, Investor or Innovation Platform.
  • Verifying Due Diligence. We are not responsible for doing diligence on the Ventures, Investors, Innovation Platforms or other Users you meet through the Platform or website or verifying any representations, materials, information or Content provided by Ventures, Investors, Innovation Platforms or other Users to you.
  • Verifying Exempt Investor status. We are not responsible for verifying that that any Investor is an Exempt Investor. We are not responsible for verifying that any Investor is otherwise authorised or appropriate to invest in a Venture, that a Venture is appropriate for an Investor to support or invest in or that a Venture or Investor is appropriate for an Innovation Platform to support or transact with. We are also not responsible for determining whether any use of the Services constitutes a general solicitation of securities under the securities laws of the laws of any state or jurisdiction, including foreign jurisdictions.
  • No Recommendations. We do not recommend any Ventures for investment, endorse their fitness for investment or verify or claim the accuracy of information provided by Ventures on the Platform or website. In particular, we do not act as an investment adviser to any User and do not promote (or provide any recommendation or opinion in relation to) investment opportunities and no part of the Platform or website is intended to constitute financial product advice or investment advice.
  • Intellectual Property Rights. EarthTech has no obligation to monitor or enforce any intellectual property rights that may be associated with Content you provide to us, but EarthTech does have the right to enforce such rights through any means it sees fit, including bringing and controlling actions on your behalf.
  • Business Opportunities. In the event that EarthTech invests in any business, we are not obligated to make that investment opportunity available to anyone else.
  • No Endorsement of Content. EarthTech does not control or endorse the Content, messages or information found in the Services or external websites that may be linked to or from the Platform or website and, therefore, EarthTech specifically disclaims any responsibility with regard thereto.
  • No Obligation to Display Content. EarthTech has no obligation to accept, display, review, verify, monitor or maintain any Content submitted by Users, User forum posts, commentary, ratings or compliments (together, Comments). We have the right to delete Content or Comments from the Services without notice for any reason at any time. EarthTech may move, re-format, edit, alter, distort, remove or refuse to exploit Content or Comments without notice to you and without liability. Notwithstanding the foregoing rights, EarthTech reserves the right to treat Content provided by Users and Comments as content stored at the direction of Users for which EarthTech will not exercise editorial control.
  • Verifying Advertisement Accuracy. The Services may contain or deliver advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in an advertiser’s or sponsor’s Content.
  • Security. EarthTech will take reasonable steps to protect the information you provide to us via the Platform, however cannot guarantee the information you transmit over the Platform or via the internet will be secure. There are risks in using the Platform, despite our efforts to secure and encrypt information you send us. Therefore, you accept that any information you provide us is at your own risk.

7. TERM AND TERMINATION

  • Unless terminated by EarthTech, this Agreement will remain in full force and effect while you use any of the Services. Subject to the last sentence of this clause (j)(a), you may terminate this Agreement at any time by deleting all Content you have provided to EarthTech and ceasing to use the Services. EarthTech may terminate this Agreement at any time, particularly if you are suspected of violating any provision of this Agreement. You will not be entitled to a refund of any subscription fee you have paid to EarthTech (or part thereof) in connection with the use of the Services upon termination of this Agreement. Upon termination of this Agreement for any reason, you shall destroy and remove from all computers, and other storage media all copies of any intellectual property owned by EarthTech or any other user of the Services that you acquired via use of the Services. Your representations in this Agreement and the provisions of clause 2 (Your obligations as a User), clause 9 (Disputes), clause 8 (Limitation of our liability) and any other provision of this Agreement which by their nature are designed to survive termination shall survive any termination or expiration of this Agreement.

8. LIMITATION OF OUR LIABILITY

  • You expressly agree that access to and use of the services is at your sole risk and is provided on an “as is” basis. EarthTech makes only the warranties expressly set out in this Agreement and to the maximum extent permitted by law, we exclude all warranties, conditions and guarantees that otherwise would be implied.
  • If you are a ‘consumer’ under the Australian Consumer Law and we supply a service which, for the purposes of the Australian Consumer Law, is of a kind ordinarily acquired for personal, domestic or household use or consumption (PDH Services) to you, you may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to those services and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of those rights.
  • If you are a ‘consumer’ under the Australian Consumer Law and we supply services to you which are not PDH Services, our liability to you in connection with any breach of the Consumer Guarantees in respect of those services is limited (at our discretion) to:
    • supplying those services again; or
    • the payment of the cost of having the services supplied again.
  • Subject to clauses 8(b) and 8(c) above, and to the extent permitted by law, our liability to you for any loss arising out of or in connection with the Services (howsoever caused including liability for negligence, in tort or contract) is limited, in the aggregate, to the amount of any subscription fees (if any) paid by the User in the prior 12 months.
  • You agree that EarthTech is not liable, and you agree not to seek to hold EarthTech liable, for the conduct of third parties, including other users of the services.
  • To the maximum extent permitted by law, we make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content thereon or any content you receive as a result of your relationship with EarthTech. EarthTech will not be responsible or liable for any harm to your computer system, loss of data or other harm that results from your access to or use of the Services or any Content. You also agree that EarthTech has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from EarthTech or through the Services, will create any warranty not expressly made herein.
  • For the purposes of this clause 8:
    • Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent Australian state or territory legislation;
    • Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law;

9. DISPUTES

  • We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other Users. If you have a dispute with other Users, you release EarthTech and hereby agree to indemnify EarthTech from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of, or in any way connected with, such a dispute.
  • To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (or the breach, termination, enforcement, interpretation or validity thereof) (Dispute), you and EarthTech agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to [[email protected]]. EarthTech will send its notice to you by email to the email address provided by you in connection with your use of the Services.
    • If we have not resolved any Dispute with you through informal negotiations, you and we agree to resolve such dispute through binding arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules, with the arbitrator nominated by the Chair of Resolution Institute unless you and we agree upon the arbitrator.
    • You and we agree that any dispute must be brought in the parties’ individual capacity and not as a plaintiff or class member in any purported class or representative proceedings.
    • You and we agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or EarthTech’s intellectual property rights; and (2) any claim for injunctive relief.

10. MISCELLANEOUS

  • Injunctive Relief. You acknowledge that the rights granted and obligations made hereunder to EarthTech are of a unique and irreplaceable nature, the loss of which shall irreparably harm EarthTech and which cannot be replaced by monetary damages alone, so that EarthTech shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
  • Amendments to this Agreement. We may amend this Agreement at any time in our sole discretion, effective upon posting the amended Agreement of Service at the domain of www.earthtech.io where the prior version of this Agreement was posted or by communicating these changes through any written or other contact method we have established with you. Your use of the Services following the date on which such amended Agreement is published will constitute consent to such amendments. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement.
  • Venue and Governing Law.  This Agreement is governed by the laws of Queensland, Australia, and in the case of any proceedings the courts of Queensland will have jurisdiction, subject to clause 9.
  • Waiver and Severability.
    • The failure of EarthTech to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of EarthTech’s right to assert or rely upon any such provision or right in that or any other instance. In fact, EarthTech may choose to enforce certain portions of this Agreement more strictly or to interpret certain provisions more strictly against certain users than it does against users in general, and such disparate treatment shall not be grounds for failing to comply with all this Agreement as so interpreted.
    • You and EarthTech agree that if any portion of this Agreement, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which shall continue to be in full force and effect.
  • Section Headings; Verification Documentation; Waiver of Execution Defenses. The section headings used herein are for convenience only and shall not be given any legal import. Upon EarthTech’s request, you will furnish to EarthTech any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against EarthTech by virtue of having drafted them. You hereby waive any and all defences you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
  • Prohibition of Assignment. You may not assign this Agreement without EarthTech’s prior written consent. Any attempted assignment in contravention of this provision will be null and void.
  • Notices. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to User may also be sent to the applicable account email address and are deemed given when sent. Notices to EarthTech must be sent to [email protected] or 253 David Low Way, Peregian Beach, Queensland, Australia, 4573
  • Force Majeure. Except for payment obligations, neither EarthTech nor User will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance).
  • Entire Agreement. This Agreement contains the entire understanding of you and EarthTech, and supersedes all prior understandings of the parties hereto relating to the subject matter hereof, and cannot be changed or modified by you. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
  • Limitation Period. You and EarthTech both agree that regardless of any statute or law to the contrary but only to the extent permissible by law in each relevant jurisdiction, any claim or cause of action arising out of or related to use of the Services, this Agreement or our Privacy Policy must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
  • No Third Party Beneficiaries. This Agreement is between you and EarthTech. 35140694_7 No User has any rights to force EarthTech to enforce any rights it may have against any you or any other User.