Terms and Conditions
Terms and Conditions
This Terms and Conditions governs any purchases and/or sales you make through the EarthRally.Com Marketplace.
PLEASE READ THIS TERMS AND CONDITIONS CAREFULLY.
Making Marketplace Purchases.
EarthRally.com (“Earth Rally”) provides the Marketplace as a location for buyers to locate and purchase new and used products from sellers that are independent of Earth Rally.com. When you make a purchase through the Marketplace, you are purchasing the product from the independent seller and not from Earth Rally. You agree that Earth Rally is not an agent for you or for the seller and has no authority to act on your or on a seller’s behalf. Earth Rally reserves the right, at its sole discretion, to change, add or remove portions of this Terms and Conditions, at any time. It is your responsibility to check this Terms and Conditions each time before using the Site. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes.
YOUR CONTINUED USE OF THE EARTHRALLY.ORG MARKETPLACE FOLLOWING ANY SUCH REVISIONS TO THE TERMS AND CONDITIONS SUCH POLICIES AND RULES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES, INCLUDING THE ARBITRATION CLAUSE AND CLASS ACTION WAIVER DESCRIBED IN “GOVERNING LAW AND ARBITRATION” SECTION BELOW TO RESOLVE ANY DISPUTES WITH Earth Rally (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). IF YOU DO NOT AGREE TO ANY SUCH CHANGES, DO NOT CONTINUE TO USE THE MARKETPLACE AND ASSOCIATED SERVICES.
Registration; Customer Accounts; Use of Site
Certain services offered on or through the Site require you to first open a customer account (“My Account”). You are responsible for maintaining the confidentiality of your My Account information, including your password, and for all activity that occurs under your My Account. You agree to notify Earth Rally immediately of any unauthorised use of your account or password, or of any other breach of security. You may be held liable for losses incurred by Earth Rally or by any other user of the Site due to someone else using your password or customer account. You may not use anyone else’s password or customer account at any time. You may not gain or attempt to gain unauthorised access to the Site. Should you attempt to do so, or should you assist others in making such attempts, or distributing instructions, software or tools for that purpose, then your customer My Account will be terminated. You agree to provide us with accurate, current and complete information about yourself and your billing information as prompted by the registration process. You may update any of your My Account information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated credit card, by clicking on the My Account button and selecting the appropriate link. You may not use any automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, probe, test or monitor any portion of the Site or of any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or of any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load (as determined by Earth Rally in its sole discretion) on the infrastructure of the Site or on any of the systems or networks comprising or connected to the Site.
You also agree that Earth Rally may, in its sole discretion and without prior notice to you, terminate your access to the Site and your My Account for any reason, including without limitation: (1) attempts to gain unauthorised access to the Site or assistance to others’ attempting to do so, (2) attempting to overcome or overcoming software security features limiting use of or protecting any Content, (3) attempted or actual discontinuance or material modification of the Site or any service offered on or through the Site, (4) violations of these Terms and Conditions, (5) failure to pay for purchases, (6) suspected or actual copyright infringement, (7) unexpected operational difficulties, or (8) requests by law enforcement or other government agencies.
You agree that Earth Rally will not be liable to you or to any third party for termination of your access to the Site.
By establishing a My Account with us, and each time you make a purchase through our Site, you grant permission for Earth Rally to contact you at your e-mail address. To stop receiving our marketing emails, send an e-mail to us at info@EarthRally.com or follow the opt-out procedures set forth in such marketing emails.
Shipment of the products you purchase in the Marketplace are made by the seller and not Earth Rally. You agree that Earth Rally has no obligation to ship to you any product you purchase in the Marketplace. You agree that Earth Rally may provide to the seller your shipping address for shipment of the products you purchase. You agree to pay the shipping charges in full for any product that you purchase.
Some of the products offered on the Earth Rally site must be imported from Other Country. If you order products that must be shipped from Other Country than your location, then you should understand that your order may take longer to arrive. More importantly, your purchase of products to be imported may impose legal responsibilities and obligations upon you. If you order products to be imported from Outer Country of your location, then by that order you agree that you are responsible to make sure (1) that the product can lawfully enter the destination country; and (2) that you comply with all laws and regulations of the destination country. When you receive an international shipment of imported products, you may be required to pay import taxes, customs duties and/or fees. If there are any additional charges for those taxes, duties or fees, or for customs clearance then you are responsible to pay them. Earth Rally does not control the amount or timing of any taxes, duties or fees. Those are set by the destination country and we cannot estimate what those costs might be for any particular product or destination. We recommend that you contact your local customs officials with any questions or if you need more information.
YOU ACKNOWLEDGE, CONSENT AND AGREE THAT Earth Rally SHALL PROVIDE SELLERS WITH INFORMATION THAT IS REASONABLY NECESSARY FOR SELLERS TO SHIP THE PRODUCTS TO YOU AND TO COMMUNICATE WITH YOU REGARDING SUCH SHIPMENT AND ANY ISSUES THAT MAY ARISE IN CONNECTION WITH YOUR PURCHASE. THIS INFORMATION INCLUDES, BUT IS NOT LIMITED TO, YOUR “SHIP TO” INFORMATION AND YOUR EMAIL ADDRESS. YOU HEREBY AGREE THAT Earth Rally SHALL HAVE NO RESPONSIBILITY, OBLIGATION OR LIABILITY WITH RESPECT TO THE DISCLOSURE OF SUCH INFORMATION TO, OR ANY COLLECTION, USE OR DISCLOSURE OF SUCH INFORMATION BY, ANY SELLER.
You may receive access to certain information concerning other Marketplace users when you use the Marketplace. You hereby represent, warrant and agree (a) not to use any information regarding other Marketplace users which is accessible from the Marketplace or that may be disclosed to you by Earth Rally, except to enter and complete transactions, and (b) not to use any such information for purposes of solicitation, sending unsolicited email or spamming, harassment, or other conduct Earth Rally deems unacceptable or objectionable.
While Earth Rally takes reasonable steps to safeguard and to prevent unauthorised access to your personal information, we cannot be responsible for the acts of those who gain unauthorised access, and we make no warranty, express, implied, or otherwise, that we will prevent unauthorised access to your private information.
IN NO EVENT SHALL Earth Rally OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY’S UNAUTHORISED ACCESS TO YOUR PERSONAL INFORMATION, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER Earth Rally WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.
Conditions of Sale and Payment
To purchase any goods and/or services on our Site, you must (a) be at least eighteen (18) years of age or the applicable state age of majority, (b) be a natural person (no corporations, partnerships or other legal entities). Prior to the purchase of any goods or services on our Site, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge your card. By submitting that information to us, you hereby agree that you authorise us to charge your card at our convenience but within thirty (30) days of credit card authorisation. All sales of products and services are final. All charges from those sales are nonrefundable.
All payments must be made by credit cards (VISA, MasterCard, American Express and Discover Network), debit cards, or other payment method specified by Earth Rally in its sole discretion. Your credit card will be authorised for the entire order amount immediately upon your placement of the order, and will be charged immediately upon Earth Rally’s receipt of shipment confirmation by the seller. You hereby authorise Earth Rally to charge your credit card accounts for any amount that you may owe Earth Rally or the seller. In addition, Earth Rally may also set off any amounts that you owe to Earth Rally or the seller against any amounts owed to you by Earth Rally or the seller.
IN FACILITATING YOUR PAYMENT TO THE SELLER, Earth Rally DOES NOT PROVIDE YOUR CREDIT CARD INFORMATION TO THE SELLER.
You agree that you and seller are responsible for determining the amount of sales, use or other taxes that you may owe as a result of your Marketplace purchase. Seller is responsible to collect, report and remit any sales, use or other taxes required under applicable law. You agree (a) that Earth Rally has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with your purchase, and (b) to fully indemnify, defend and hold Earth Rally harmless from any and all claims, demands, damages, awards, fines, costs, expenses and liability in any way associated with foregoing. Without limiting the generality of the foregoing, Earth Rally currently automatically charges sales tax with respect to any marketplace products shipped to California.
Changing or Cancelling Marketplace Orders
Once you have placed an order for a product in the Marketplace, seller will be handling all aspects of the order process. Earth Rally will not change or cancel any order made by you, including any change to shipping or billing information. You will need to contact the seller for any changes or cancellations that you wish to make to your order. The seller’s contact information can be found in your order detail located in your My Account or in the email we sent to you confirming your order.
Marketplace Customer Service
Other than to verify that payment to the seller through your My Account was completed, Earth Rally does not provide any customer support for any purchase you make through the marketplace, and you agree that Earth Rally is not responsible to provide any such support. If you have any questions about the product you purchased or your shipment you must contact the seller of your product directly for any customer support that you need. The seller’s contact information can be found in your order detail located in your My Account or in the email we sent to you confirming your order.
You may not make any returns to Earth Rally of products you purchase in the Marketplace. You must contact the seller for any product returns that you wish to make. The seller’s contact information can be found in your order detail located in your My Account or in the email we sent to you confirming your order.
You agree that feedback you provide concerning Marketplace sellers will be truthful and accurate. You agree that you will not use profanity, vulgar expressions, or any obscenity in your feedback comments. You agree that you will not provide any feedback that could be considered defamatory or that violates the privacy, intellectual property, or other rights of any third party. You agree that Earth Rally may publicly post your feedback without any payment or other obligation to you. You agree that Earth Rally may edit your feedback in any way that Earth Rally sees fit and that Earth Rally may remove your feedback at any time. Once you have submitted feedback, it may not be altered by you.
Use of Marketplace
You hereby represent and warrant that your use of the Marketplace will comply with applicable laws, ordinances and regulations. Earth Rally may exclude any buyer, including you, from making purchases in the Marketplace at any time and for any reason. Resellers may not purchase products on Earth Rally.com and Earth Rally reserves the right, at its sole discretion, to cancel such purchase.
Price comparisons may be made throughout the site to indicate the relative savings amounts of our pricing. “LIST PRICE” is the suggested retail price provided to us by our suppliers. We make no representation that a substantial number of these products have been sold or offered for sale at the list price. Actual retail prices in your area may be substantially different. Because the products on Earth Rally.com are sold over the internet on a national basis, it is not possible to know if the products are sold at list price in any particular location or at any particular time. “YOU SAVE” reflects the difference between our price and the supplier provided list price shown on our sites. Because the list price may be different than the actual retail prices in your area, you may not actually realise a savings of this amount and you may want to make an exact comparison for yourself by checking the prices of other internet or local retailers prior to making a purchase.
Content; Copyright and Trademark Notice.
All media (downloaded or samples), software, text, images, graphics, user interfaces, music, videos, photographs, trademarks, logos, artwork and other content on the Site (collectively, “Content”), including but not limited to the design, selection, arrangement, and coordination of such Content on the Site is owned or licensed by or to Earth Rally, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws. Except as expressly provided in these Terms and Conditions, no part of the Site and no Content may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitised, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without Earth Rally’s prior express written consent. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets, trade dress, rights of publicity or trademarks with respect to any of the Content, and Earth Rally reserves all rights not expressly granted hereunder. Earth Rally expressly disclaims all responsibility and liability for uses by you of any Content obtained on or in connection with the Site. EarthRally.org is registered trademarks, trademarks or service marks of Earth Rally or its affiliates. All custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks of Earth Rally or its affiliates. All other trademarks or service marks are property of their respective owners. The use of any Earth Rally trademark or service mark without Earth Rally express written consent is strictly prohibited.
Policy to Terminate Privileges for Copyright Infringement.
Pursuant to http://www.legislation.gov.uk/ukpga/2017/30/contents/enacted, Earth Rally will terminate the account of any customer, or vendor who uses his or her privileges to unlawfully transmit copyrighted material without a license, valid defence or fair use privilege to do so. After proper notification by the copyright holder or its agent to Earth Rally and later confirmation through court order or an admission by the customer that an account has been an instrument of unlawful infringement, Earth Rally will terminate the infringing customer’s account. Earth Rally may also in its sole discretion decide to terminate a customer’s account privileges prior to that time if it has a good faith belief that such unlawful infringement has in fact occurred. In addition, pursuant to http://www.legislation.gov.uk/ukpga/2017/30/contents/enacted, Earth Rally, as an Internet “Service Provider” thereunder, has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. Earth Rally respects the intellectual property of others and we ask other to do the same. If you believe that your copyright has been infringed through the Earth Rally website, then please contact “Legal Department”, via e-mail, or mail at: info@EarthRally.com
Any written notice describing the infringing activity must include the following information:
1. An electronic or physical signature of the person authorised to act on behalf of the owner of an exclusive that is allegedly infringed;
2. A description of the allegedly infringing work or material;
3. A description of where the allegedly infringing material is located on the site;
4. Information reasonably sufficient to allow us to contact you, such as your address, telephone number and e-mail address;
5. A statement by you that you have a good faith belief that the disputed use of the material is not authorised by the copyright or other proprietary right owner, its agent, or the law;
6. A statement by you that the above information and notification is accurate, and under penalty of perjury, that you are the copyright owner or authorised to act on behalf of the owner whose exclusive right is allegedly infringed.
Failure to include all of the above-listed information may result in the delay of the processing of your complaint.
Where we or a Seller are prevented from or delayed in carrying out obligations under these Customer Terms due to circumstances beyond our or the Seller’s reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, inclement weather, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to the Seller’s workforce), or restraints or delays affecting carriers or an inability or delay in obtaining supplies of adequate or suitable materials then either our or the Seller’s (as the case may be) performance of its obligations shall be postponed for the period of time that the circumstances continue.
Dispute Resolution Steps, Claim Process, and Refunds.
If you do not receive your product or you have received a product that is defective, damaged, or that does not match the description contained in the Marketplace, you must contact the seller directly to attempt to resolve the problem. The seller’s contact information can be found in your order detail located in your My Account or in the email we sent to you confirming your order. Earth Rally will not mediate, disputes, or resolve the matter on your behalf.
Earth Rally IS NOT THE SELLER/MERCHANT OF ANY OF THE GOODS OR SERVICES ON THE MARKETPLACE. Earth Rally HAS INSTITUTED A CLAIM PROCESS TO ASSIST YOU WITH CLAIMS THAT YOU MAY HAVE WITH THE SELLER. BECAUSE THE MARKETPLACE ALLOWS YOU TO MAKE THE PURCHASE THROUGH THE Earth Rally BASKET WITHOUT YOU HAVING TO PASS YOUR CREDIT CARD TO THE SELLER, Earth Rally CHARGES YOUR CREDIT CARD FOR THE SALE. ANY DISPUTE BROUGHT BY YOU THROUGH YOUR CREDIT CARD COMPANY AFFECTS Earth Rally RATHER THAN THE SELLER. THEREFORE, YOU CANNOT SUBMIT A CLAIM IF YOU HAVE INSTRUCTED YOUR CREDIT CARD COMPANY TO DISPUTE THE CHARGE. IN ADDITION, Earth Rally MAY PREVENT FURTHER PURCHASES BY YOU THROUGH THE MARKETPLACE IF YOU HAVE INSTRUCTED YOUR CREDIT CARD COMPANY TO DISPUTE THE CHARGES MADE THROUGH THE MARKETPLACE.
You agree to indemnify, defend and hold harmless Earth Rally and its parents, sister companies, subsidiaries, affiliates, service providers, sellers, distributors, licensors, officers, directors and employees from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or related to your violation of any provision of this Marketplace Buyer Agreement, or your violation of any law, regulation or third-party right.
IN THE EVENT OF A DISPUTE OR CLAIM REGARDING ANY ORDER OR PURCHASE MADE THROUGH THE MARKETPLACE, OR BETWEEN YOU AND A SELLER OR OTHER THIRD PARTY RELATED TO ANY ORDER OR PURCHASE MADE THROUGH THE MARKETPLACE, YOU HEREBY RELEASE Earth Rally AND ITS PARENTS, SISTER COMPANIES, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, SELLERS, DISTRIBUTORS, LICENSORS, OFFICERS, DIRECTORS AND EMPLOYEES FROM ALL CLAIMS, DAMAGES OR DEMANDS OF ANY KIND, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE OR CLAIM.
YOU ACKNOWLEDGE THAT YOU MAY DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE WHICH YOU NOW KNOW OR BELIEVE TO BE TRUE AND THAT THIS RELEASE SHALL BE AND REMAIN EFFECTIVE IN ALL RESPECTS EVEN IF YOU DISCOVER NEW OR ADDITIONAL FACTS AFTER YOU EXECUTE THIS AGREEMENT. YOU EXPRESSLY WAIVE ALL RIGHTS AND BENEFITS.”A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH [YOU] DO NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOUR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR [RELEASEES]” WARRANTY DISCLAIMER. THE Earth Rally MARKETPLACE AND ANY RELATED PRODUCTS, SERVICES, CONTENT, SOFTWARE, ARTWORK, DATA, AND INFORMATION ARE PROVIDED ”AS IS.“ Earth Rally EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE Earth Rally MARKETPLACE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES OR CORRESPONDENCE TO DESCRIPTION.
LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE Earth Rally MARKETPLACE, THE USE OF ANY PRODUCTS AND/OR SERVICES OFFERED ON OR IN CONNECTION WITH THE MARKETPLACE, AND/OR THE USE OF ANY CONTENT REMAINS WITH YOU. IN NO EVENT SHALL Earth Rally OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS MARKETPLACE BUYER AGREEMENT, YOUR USE OF THE Earth Rally MARKETPLACE OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, AND/OR CONTENT OBTAINED THROUGH THE MARKETPLACE, ANY DELAY OR INABILITY TO USE THE Earth Rally MARKETPLACE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT OBTAINED THROUGH THE Earth Rally MARKETPLACE, OR OTHERWISE ARISING OUT OF THE USE OF THE Earth Rally MARKETPLACE OR THE Earth Rally SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF Earth Rally HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MARKETPLACE BUYER AGREEMENT, THE MAXIMUM LIABILITY THAT Earth Rally SHALL HAVE IS LIMITED TO ANY COMMISSIONS ACTUALLY RECEIVED BY Earth Rally IN CONNECTION WITH ANY PURCHASES MADE BY YOU FROM A SELLER THROUGH THE MARKETPLACE. ORDER INFORMATION SUCH AS BILLING OR SHIPPING ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE RESPONSIBILITY OF Earth Rally. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS MARKETPLACE BUYER AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Law and jurisdiction
Contracts for the purchase of goods or services through our Site or the App shall be governed by English law. Any dispute arising from, or related to, such contracts shall be subject to the exclusive jurisdiction of the courts of England.
No delay or failure by Earth Rally to take action under this Terms and Conditions shall constitute any waiver by Earth Rally of any provision of this Marketplace Buyer Agreement. If any provision of this Terms and Conditions is invalid or unenforceable under applicable law, it is, to that extent, deemed enforceable to the fullest extent possible (and severable in the event such provision is completely unenforceable) and the remaining provisions of this Terms and Conditions will continue in full force and effect. This Terms and Conditions will bind and inure to the benefit of Earth Rally’s successors and assigns. Any claim under this Terms and Conditions must be brought within one (1) year after the cause of action arises. This Terms and Conditions is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Terms and Conditions shall be null and void. Earth Rally may freely assign this Terms and Conditions without consent or notice. This Terms and Conditions constitutes the complete and exclusive agreement between Earth Rally and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.
Effective Date: March 1, 2020