Terms & conditions
Last updated: 07/29/2022
These Merchant Terms and Conditions of Use (the “Terms”) are entered into by and between EcoCart, Inc. (“EcoCart”, “we”, “us” or “our”) and you, the person or entity that registers for or downloads our proprietary ecommerce plugin for online merchants (as described in more detail below, the “Application”), or the organization or entity that has authorized you to register for the Application for its benefit (in either case “you” or “your”), and govern your access to and use of the Application.
PLEASE READ THESE TERMS CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ECOCART. BY DOWNLOADING OR REGISTERING FOR THE APPLICATION, YOU CONFIRM THAT (1) YOU HAVE READ AND UNDERSTOOD THESE TERMS, (2) YOU ARE AT LEAST 18 YEARS OLD, AND (3) YOU, AND THE ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THESE TERMS, ACCEPT THEM.
REGISTERING FOR OR DOWNLOADING THE APPLICATION INDICATES THAT YOU CONFIRM EACH OF 1-3 ABOVE, AND ACCEPT AND INTEND TO BE BOUND BY THESE TERMS, AND CONSENT TO ENTER INTO THESE TERMS IN ELECTRONIC FORM. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT REGISTER FOR OR DOWNLOAD THE APPLICATION.
WE MAY MODIFY THESE TERMS FROM TIME TO TIME AND AT ANY TIME, IN WHICH CASE WE WILL POST A NEW VERSION ON THIS SITE (WWW.ECOCART.IO) (“SITE”), AND UPDATE THE “EFFECTIVE DATE” ABOVE, AND CHANGES TO THESE TERMS ARE EFFECTIVE WHEN POSTED TO THE SITE, AND YOUR CONTINUED USE OF THE APPLICATION FOLLOWING POSTING OF ANY CHANGES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES, AND IF YOU DO NOT AGREE WITH THESE CHANGES, YOU MUST IMMEDIATELY STOP USING THE APPLICATION AND CLOSE YOUR ACCOUNT.
PLEASE PRINT THESE TERMS FOR YOUR RECORDS.
Use of the Application
- The EcoCart merchant plugin application provided to you under these Terms, and all content, features and functionality provided by or included with the Application, including, but not limited to, content, layout, logos, and software, and any application program interface that we provide to you (“API”), and all documentation that we make available to you in connection with the foregoing (collectively the “Application”), are and will remain the exclusive property of EcoCart and its licensors. The Application is protected by copyright, trademark and other intellectual property laws and rights. As a user of the Application, we grant you a limited, nontransferable, nonsublicensable, nonexclusive and revocable license to access and use the Application solely as permitted by and subject to these Terms. Except for this limited license, we do not grant you any other rights or licenses with respect to the Application, and such rights and licenses are expressly reserved to us and our licensors.
- You may use the Application solely for your internal and lawful business purposes, and solely in connection with the online merchant website identified in your online registration form (“Store”). You may permit customers of your Store (“Users”) to use the Application in connection with their purchases through your Store, provided that you require such Users to comply with terms and conditions of use of the Store that are at least as protective of the Application and our rights to the Application as set forth in these Terms, including without limitation paragraph 15 below. You are responsible and liable for your Users’ use of the Application, and for their compliance (and noncompliance) with these Terms. If the Application is made available to you through a third party such as Shopify, then you must comply with all Shopify requirements and agreements to which you are bound.
- We may monitor any and all use of the Application by all users, including Users. We may gather user system data for the purpose of optimizing the Application, and may use and disclose this data subject only to our compliance with applicable laws.
- We may modify or remove any features of the Application at any time and for any reason, with or without notice.
Conduct on the Application
- You may not, use or allow others to use, the Application in any manner other than as expressly allow in this Agreement. You agree not to (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Application or its structural framework, (ii) sublicense, subcontract, translate or sell any rights to the Application, (iii) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Application, (iv) harvest or collect information about or from other users of the Application (v) probe, scan or test the vulnerability of the Application, nor breach the security or authentication measures on the Application or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Application (vi) modify or create derivative works of the Application, (vii) attempt to gain unauthorized access to the Application or its related systems or networks, (viii) use the Application in whole or in part for any illegal or other purpose except as expressly provided under this Agreement (including without limitation allowing any distribution or sublicense of the Application or other access to the Application by any person or entity that is not a User), or (ix) facilitate or encourage any violations of this Section. You agree to (a) take all reasonable precautions to prevent unauthorized or improper use of the Application, (b) not interfere with or disrupt the integrity or performance of the Application, (c) not attempt to gain unauthorized access to the Application or its related systems or networks, and (d) not create Internet “links” to the Application or “frame” or “mirror” any content therein. You agree not to access the Application by any means other than through the interface that is provided by us for use in accessing the Application.
- In addition, while using the Application, you will not do the following:
- Violate any laws, third-party rights or these Terms;
- Transmit any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability or otherwise violate any law;
- Upload or distribute any virus, Trojan horse, time bomb or other malicious code or technologies that may damage, interfere with or harm, or attempt to damage, interfere with or harm, the Application, the operation of the Application or the interests or property of its users; or
- Use the Application to send altered, deceptive or false source-identifying information.
- You are responsible for obtaining your own access to the Application, and such access may involve third-party fees, such as internet service provider or airtime charges. You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Application.
- We may identify you as a customer of EcoCart and use your name and logo in our advertising and marketing materials (including our website and press releases) solely in connection with such identification. You can retract the foregoing permission by submitting a request via email to firstname.lastname@example.org.
- As a condition to using certain features of the Application, you will be required to create an account (an “Account”), which Account will include a username and password. If you create an Account, you agree to provide true, accurate, complete and updated registration information and maintain and promptly update your registration information to keep it true, accurate, complete and updated. If you provide information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, we have the right to suspend or terminate your Account and refuse any and all current or future use of related features of the Application.
- You are responsible for maintaining the confidentiality of your Account username and password and for the security of your Account. You are also fully responsible for all activities that occur under your Account. You must notify us immediately of any actual or suspected loss, theft or unauthorized use of your Account username or password. We are not liable for any loss or damage arising from your failure to comply with this Section.
- If you have registered and created an Account on the Application, and you wish to close such Account, you may contact us at the following email address to request termination and deletion of your Account: email@example.com.
Purchases and Carbon Offsets
- The Application may employ the use of third-party services for the purpose of facilitating payment and the completion of purchases. By submitting your information, you grant us the right to provide the information to these third parties.
- When elected by Users in purchasing products using the Application, we will purchase the quantity of carbon credits required to offset the calculated estimate of carbon emissions for such products, which is available on your dashboard, less our transaction fee of $0.03 – $0.15 depending on your selection in the ‘account settings’ of the EcoCart dashboard, and any third party payment processing fee(s).
- We reserve the right to purchase credits at a date later than the date of the carbon offset collection due to delays in collection from the User and bulk availability of carbon credits. We are not required to purchase carbon credits from the project solicited to the User, and we may choose to purchase carbon credits from other verified projects for any reason at our sole discretion. For example, if the specific project solicited is fully subscribed and funded at the time of carbon offset purchase, but the EcoCart plugin and/or dashboard, does not reflect that, we will buy carbon offsets on behalf of the User for a project with a similar cost and environmental impact-profile, as determined by us. Also, we may can change the implied price of the carbon offset in our discretion based on market availability, and we may change inputs for emissions calculations based on new data. Shipping and production emissions are strictly estimates based on publicly available research and information. Items without available research are calculated based on our estimate of the item’s materials and weight. All emissions calculations are subject to change. We may retire carbon credits in bulk on behalf of all of our customers and users, and therefore we do not attribute specific credit purchases to any individual customer(s).
- We will automatically charge your credit care for carbon offsets made through the Product. If your payment lapses, and EcoCart doesn’t receive carbon offset funds, we are not liable or responsible to purchase offsets on customers’ behalf. Also, if your payment lapses, then, without limiting EcoCart’s other available remedies, we may suspend your access to the Application, treat such lapse as a material breach of these Terms, and/or assess a late payment fee of 1.5% per month on the overdue amount or the highest amount permitted under applicable law, whichever is less.
Availability, Errors and Disclaimers
- We are constantly updating product and service offerings on the Application. We may experience delays in updating information on the Application and in our advertising on other websites. The information found on the Application may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately or unavailable on the Application, and we cannot guarantee the accuracy or completeness of any information found on the Application. We therefore reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice.
- WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE APPLICATION AND ANY OTHER INFORMATION, MATERIALS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT THE APPLICATION OR ANY ASSOCIATED SERVICES WILL BE AVAILABLE, ERROR FREE, SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION, OR THAT THEIR FUNCTIONS WILL MEET ANY PARTICULAR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION OR IMPROVEMENT. THE APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Third-Party Content and Links to Other Websites
- Portions of the content and information provided on the Application may have been compiled from or posted by third-party sources, and the Application may contain links to third-party websites or services that are not owned or controlled by EcoCart. EcoCart has no control over, and assumes no responsibility for, the content, privacy policies or practices of any third-party content, websites or services. We do not warrant the offerings of any third parties or their websites. Further, we do not warrant the accuracy, timeliness or appropriateness for any particular purpose of any third-party content or content on an outside website. Inclusion on the Application of any third party, third-party content or link to an outside website does not constitute any endorsement by EcoCart of the third party, any third-party content included on the Application, the third-party website or any of the content, products or services provided by a third party on any linked websites
- We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any third-party content, goods or services available on or through any such third-party websites or services, which you use at your own risk. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you use or visit.
Suspension and Termination
- We may terminate or suspend your access to the Application or parts thereof at any time, without prior notice or liability, in our sole discretion, for any reason or no reason. Upon termination of your access to the Application or any part thereof, your right to use or access the Application, or such relevant part of the Application, will immediately cease. Termination of your access to the Application or any part thereof shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you may otherwise have to us or any third party. You agree that we shall not be liable to you or any third party for any termination of your access to the Application pursuant to this Section. All provisions of these Terms which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity provisions and limitations of liability.
- You will indemnify and hold harmless EcoCart, its affiliates and licensors, and their respective employees, contractors, agents, shareholders, officers and directors (the “Indemnified Parties”) from and against any and all claims, damages, obligations, losses, liabilities, suits, settlements, judgments, costs, fines, penalties, debts and expenses (including, but not limited to, attorneys’ fees) (“Claims”) resulting from or arising out of (i) misuse of the Application or use other than in accordance with these Terms by you or Users, (ii) breach of these Terms by you or Users, (iii) violation of any law or the rights of a third party by you or Users, (iv) content you or Users submit, transmit or otherwise make available through the Application, (v) claims or allegations made by Users, and (vi) all matters relating to the Store. You will also defend the Indemnified parties from Claims at your expense, with counsel reasonably acceptable to us, if instructed by us. The Indemnified Parties shall be entitled to participate in the defense of any such Claim without waiving or reducing any of your obligations under this Section. You shall also indemnify the Indemnified Parties for any expenses incurred in enforcing this Section.
Limitation of Liability
- You expressly understand and agree that under no circumstances shall we be liable to you on account of your misuse of the Application, or your reliance upon the results of the Application. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ECOCART WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING USERS) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE APPLICATION, AND ANY OTHER INFORMATION OR SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF ECOCART IS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. ECOCART’S TOTAL CUMULATIVE LIABILITY TO YOU IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 .
- Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability, so the limitations and disclaimers above may not apply to you or may be limited in their applicability to you.
- These Terms shall be governed by and construed in accordance with the laws of the State of California, United States, without regard to conflict of law provisions.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THESE TERMS AND/OR THE APPLICATION MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THIS SECTION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY.
This Section applies to any Dispute except for Disputes relating to the enforcement or validity of our intellectual property rights. The term “Dispute” means any dispute, action or other controversy between you and us concerning these Terms, the Application, or any product, service or information we make available to you, whether in contract, warranty, tort, statute, regulation, ordinance or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to 340 Fremont Street, #715, San Francisco, CA 94105. We will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and we will attempt to resolve any Dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, either you or we may commence arbitration. You may also litigate any Dispute in small claims court in your county of residence or San Diego, California, if the Dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
If you and we do not resolve any Dispute by informal negotiation or in small claims court, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration as described in this Section. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
To the maximum extent permitted under applicable law, any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any Dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. If this waiver is found to be illegal or unenforceable as to all or some parts of a Dispute, then it won’t apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
If you are located within the United States, Canada, the United Kingdom or the European Union, or any of their territories, then any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. You and we each agree to commence arbitration only in San Francisco, California, USA. You may request a telephonic or in-person hearing by following the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. If you are located in a country other than listed above, then arbitration will be conducted by the International Court of Arbitration of the International Chamber of Commerce (ICC) pursuant to UNCITRAL rules, and the arbitration shall be conducted in English and the English version of these Terms (and not any translation) shall control, and both parties hereby agree to accord this arbitration agreement the broadest scope admissible under applicable Laws, and that it shall be interpreted in a non-restrictive manner. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim. These Terms govern to the extent they conflict with the arbitrators’ commercial rules. The arbitrator may award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive or indirect, incidental or consequential damages. Each party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator and AAA; however, the arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. Within fifteen (15) calendar days after conclusion of the arbitration, the arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. The parties waive their right to commence any action or judicial proceeding in connection with a dispute hereunder, except for purposes of: (i) recognition and/or enforcement of the arbitration award or any other decision by the arbitral tribunal, (ii) obliging the other party to participate in the arbitration proceedings, (iii) requesting any type of conservative or interim measure in connection with the dispute prior to the constitution of the arbitral tribunal, (iv) requesting the appearance of witnesses and/or experts, and/or (v) requesting that any information and/or documentation discovery be complied with. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or Dispute were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence.
To the extent permitted by applicable law, any claim or Dispute under these Terms must be filed within one year from the date of the cause of action. If a claim or dispute isn’t filed within one year, it’s permanently barred.
You agree that we would be irreparably damaged if these Terms were not specifically enforced. Therefore, in addition to any other remedy we may have at law, and notwithstanding our agreement to arbitrate Disputes, we are entitled without bond, other security, or proof of damages, to seek appropriate equitable remedies with respect to your violation of these Terms in any court of competent jurisdiction.
- These Terms and all rights and obligations hereunder are not assignable or transferable by you, and any attempt to do so shall be void. These We may assign these Terms, in whole or in part, at any time, in our sole discretion, without your consent. Terms bind the parties’ successors and permitted assigns. We will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond our reasonable control. You and EcoCart are independent contractors and nothing in these Terms will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between you and EcoCart. Neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party. All notices and consents required or permitted under these Terms must be in writing; must be personally delivered, sent by registered or certified mail (postage prepaid), by overnight courier, or by email. Notices to EcoCart should be sent to [____________]. Notices to you shall be sent to the address that we have on file with your user account. You agree that we may communicate directly with Users electronically regarding administrative, security and other issues relating to their use of the Application. Notwithstanding anything to the contrary herein, any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights. If any provision in these Terms is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of these Terms will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible. IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE MAXIMUM ALLOWED BY APPLICABLE LAW. These Terms are made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with these Terms. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by either party to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege. These Terms supersede all prior discussions, understandings and agreements between the parties with respect to its subject matter. These Terms may only be modified by EcoCart as set forth above, or by the parties in a writing signed by both parties.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org