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These Terms provide important information to you, including your agreement under Section 8 to resolve any disputes by individual arbitration and to waive the right to participate in any kind of class action, unless you choose to opt-out as described in Section 8 below. The Terms also cover your agreement to grant us rights to your content, our limitation of liability to you and, if you choose to provide us with your phone number, your agreement to receive calls and text messages from us in accordance with applicable law. By agreeing to these Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or any type of representative actions.
We encourage you to review this Agreement carefully. By accessing or using Essential.Supply in any way, including browsing Essential.Supply, you are agreeing to these Terms in their entirety. If you do not agree to any of the Terms, you may not use the Essential.Supply platform.
a. Who can use it. You must be at least the age of majority in the state where you live to use Essential.Supply. Use of Essential.Supply by anyone under 16 years of age is strictly prohibited!
d. Acceptable Use Policy. When using Essential.Supply, you agree to abide by common standards of etiquette and act in accordance with the law.
e. Prohibited Products Policy. If you are a vendor, or seller, who is authorized to offer products through Essential.Supply, you agree to abide by the Prohibited Products Policy.
f. Termination. You may close your account at any time by going to account settings and deactivating your account. We may permanently or temporarily suspend your use of Essential.Supply at any time for any reason, without any notice or liability to you. We may terminate your account at any time for any or no reason, including if you violate any Essential.Supply policy (including Prohibited Products Policy. Upon termination of your use of Essential.Supply, certain provisions will survive termination, as detailed in Section 10 (m).
g. Feedback. We welcome your feedback and suggestions about how to improve Essential.Supply. Feel free to submit feedback by Contacting Us. By submitting feedback in this or in any other manner to us, you grant us the right, at our discretion, to use, disclose and otherwise exploit the feedback, in whole or part, without any restriction or compensation to you, as further described in Section 2 (b) below.
a. Definition of Your Content. Essential.Supply enables you to post materials, including without limitation photos, profile pictures, messages, comments, look books, catalogs and wish lists. You may also post reviews of products. All materials that you post on Essential.Supply will be referred to collectively as "Your Content."
b. License and Permission to Use Your Content. You hereby grant to us and our affiliates, licensees and sublicensees, without compensation to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Your Content, or any portion thereof, throughout the world in any format, media or distribution method (whether now known or hereafter created) for the duration of any copyright or other rights in Your Content. Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Your Content. If you identify yourself by name or provide a picture or audio or video recording of yourself, you further authorize us and our affiliates, licensees and sublicensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now known or hereafter created) your name, voice and likeness throughout the world, and such permission will be perpetual and cannot be revoked for any reason, except as required by applicable law. You further agree that we may use Your Content in any manner that we deem appropriate or necessary.
c. Ownership. We acknowledge and agree that you, or your licensors, as applicable, retain ownership of any and all copyrights in Your Content, subject to the non-exclusive rights granted to us in the paragraph above, and that no ownership of such copyrights is transferred to us under this Agreement. Further, with respect to Your Content in the form of photos, and subject to Essential.Supply product and user experience considerations: (a) we will use commercially reasonable efforts to maintain the attribution of such photos as submitted by you, and (b) we will not license or sublicense to third parties individual photos or collections of photos, except in each case for Essential.Supply Business Purposes. "Essential.Supply Business Purposes" means any use in connection with an Essential.Supply-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes Essential.Supply, the services or the information it contains, Essential.Supply or its affiliates. Essential.Supply Business Purpose specifically includes the use of Your Content on Essential.Supply in connection with features and functions offered by Essential.Supply to our users that enable them to view and interact with Your Content.
d. Your Responsibilities for Your Content. By posting, uploading, or submitting Your Content on Essential.Supply, you represent and warrant to us that you have the ownership rights, or you have obtained all necessary licenses or permissions from any relevant parties, to use Your Content in this manner. This includes obtaining the right to grant us the rights to use Your Content in accordance with this Agreement. You are in the best position to judge whether Your Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with Your Content. You are responsible for ensuring that Your Content does not violate Prohibited Products policies or any applicable law or regulation. You agree to pay all royalties, fees, and any other monies owed to any person by reason of Your Content.
e. Limits. We reserve the right to remove Your Content, in whole or part, for any reason (which may include a reported violation of our Prohibited Products policies. We reserve the right to remove Your Content, in whole or in part, submitted by you for any reason without notice. We do not guarantee that we will publish all of Your Content. If you seek to publish a review, the requirements will be governed by our Reviews Policy.
a. Definition of Our Content and Materials. All intellectual property in or related to Essential.Supply (specifically including, but not limited to, our software, the Essential.Supply logo, and Essential.Supply widgets, but excluding Your Content), is the property of BrandNexity Commerce Group, Inc. d.b.a. Essential.Supply, its subsidiaries and affiliates or its licensors ("Our Content and Materials").
c. No Endorsement or Verification. Please note that Essential.Supply enables access to third-party content, products, and services, and it offers interactions with third-parties that we do not control. We assume no responsibility for, nor do we endorse or verify the content, offerings or conduct of third-parties (including but not limited to the products or services offered by third-parties or the descriptions of the products or services offered by third-parties). Participation or availability on the Essential.Supply does not amount to endorsement or verification by us. We make no warranties or representations with respect to the accuracy, completeness or timeliness of any content posted on Essential.Supply by anyone.
d. Restrictions. Except as expressly provided in these Terms, you agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit Our Content and Materials without our express written permission. Essential.Supply’s permission to you for your use of the Platform expressly excludes commercial use by you of any information concerning product descriptions or professional listings for the benefit of another merchant. You are expressly prohibited from any use of data mining, robots, or similar data gathering and extraction tools in your use of Essential.Supply.
e. Ownership. You acknowledge and agree that Essential.Supply will remain the property of BrandNexity Commerce Group, Inc. d.b.a. Essential.Supply. The content, information and services made available on Essential.Supply are protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. You acknowledge that you do not acquire any ownership rights by using Essential.Supply.
a. Purchase of Products through Essential.Supply. Essential.Supply and third-party sellers offer equestrian sport and lifestyle products, as well as other products for sale on Essential.Supply. If you purchase products on Essential.Supply, your purchase is subject to the Terms of Sale. The availability of products sold by third-parties on Essential.Supply does not imply our endorsement or verification of the products or their descriptions.
b. Embed Tool. If you are a user of the embed tool, which enables you to link to content on Essential.Supply, you understand and agree that we cannot guarantee that the content, which originates from third-parties, is non-infringing or will be free from claims about infringement. Such third-party content may be subject to takedown by us at any time, in accordance with our policies, if we receive a notice of infringement.
c. Third-Party Services. You may be provided the opportunity on Essential.Supply to purchase services that are offered by third parties (collectively "Third-Party Services"), The availability of any Third-Party Services on Essential.Supply does not imply our endorsement of the Third-Party Services.
We have a special process for reporting violations of your intellectual property rights or other violations of Essential.Supply policies or applicable laws.
a. Copyright and Trademark Policy. We have adopted and implemented a Copyright and Trademark Policy. For more information, including detailed information about how to submit a request for takedown if you believe content on Essential.Supply infringes your intellectual property rights, please read our Copyright and Trademark Policy. For your convenience, we provide you a Copyright or Trademark Infringement Claim Form, which you should use for fastest processing.
b. Reports of Other Violations. If you believe content on Essential.Supply violates Prohibited Products, or otherwise violates applicable law, you may submit the following Infringement Claim Form. We have no obligation to delete content that you personally may find objectionable or offensive. We endeavor to respond promptly to requests for content removal, consistent with our policies described above and applicable law.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF ESSENTIAL.SUPPLY ENTITIES TO YOU.
THE "ESSENTIAL.SUPPLY ENTITIES" MEANS BRANDNEXITY COMMERCE GROUP, INC. D.B.A.. ESSENTIAL.SUPPLY , AND ANY SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, SUPPLIERS, LICENSORS AND PARTNERS, AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF EACH OF THEM. EACH PROVISION BELOW APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW:
a. WE ARE PROVIDING YOU ESSENTIAL.SUPPLY, SERVICES, INFORMATION, PRODUCTS, PRODUCT DESCRIPTIONS, AND THIRD-PARTY CONTENT ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THE ESSENTIAL.SUPPLY ENTITIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
b. THE ESSENTIAL.SUPPLY ENTITIES MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOR: (i) CONTENT POSTED BY ANY THIRD-PARTY ON ESSENTIAL.SUPPLY, (ii) THE PRODUCT DESCRIPTIONS OR PRODUCTS, (iii) THIRD-PARTY SITES AND ANY THIRD-PARTY PRODUCT OR SERVICE LISTED ON OR ACCESSIBLE TO YOU THROUGH THE SITE, (iv) PLANTS OR SEEDS FROM THE EXCHANGES, AND (v) THE QUALITY OR CONDUCT OF ANY THIRD-PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SITE.
c. YOU AGREE THAT UNDER THE MAXIMUM EXTENT PERMITTED BY LAW, THE ESSENTIAL.SUPPLY ENTITIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE ESSENTIAL.SUPPLY ENTITIES SPECIFICALLY WILL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF THE ESSENTIAL.SUPPLY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF AND IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, ESSENTIAL.SUPPLY OR PRODUCTS OR (ii) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) ONE-HUNDRED DOLLARS (USD$100) OR (B) THE AMOUNTS PAID OR PAYABLE BY YOU TO ESSENTIAL.SUPPLY IN CONNECTION WITH THE PLATFORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. YOUR USE OF ESSENTIAL.SUPPLY, PRODUCTS, INFORMATION, OR SERVICES IS AT YOUR SOLE RISK.
You agree to fully indemnify, defend, and hold the Essential.Supply Entities and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of any part of this Agreement, including but not limited to the Prohibited Products Policy; (b) any allegation that any materials you submit to us or transmit to Essential.Supply infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with Essential.Supply or other websites to which Essential.Supply is linked; and/or (d) your negligent or willful misconduct.
If you have a dispute with Essential.Supply, you agree to contact us by submitting a form via Contact Us to attempt to resolve the issue informally first. If we are not able to resolve the dispute informally, then this section will govern any legal dispute that relates to Essential.Supply or involves our services.
a. Binding Arbitration. You and Essential.Supply agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of Essential.Supply (collectively "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Essential.Supply both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Essential.Supply in "small claims" court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
b. Class Action Waiver. You and Essential.Supply agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that, in connection with any Dispute, you and Essential.Supply both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Essential.Supply agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person's claims and may not preside over any form of class action proceeding.
c. Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (if you use the Essential.Supply Platform as a consumer) or Commercial Arbitration Rules (if you are a professional, vendor, seller or other business), as applicable and then in effect (the "AAA Rules"), except as modified by this "Dispute Resolution” section.
d. Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
e. Arbitration Location and Procedure. The seat of the arbitration shall be in Wilkes-Barre, PA, unless you and Essential.Supply agree otherwise or the AAA Rules or AAA Consumer Due Process Protocol, as applicable, provide otherwise. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Essential.Supply submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
f. Arbitrator's Decision and Governing Law. The arbitrator shall apply Pennsylvania law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the "Disclaimers and Limitations of Liability" section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant's individual claim.
g. Fees. Each party's responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
h. Opt-Out. You have the right to opt out of the arbitration provisions of Section 8 by sending a written notice of your decision to opt out to the following address: 75 Stark Street, Suite 1, Dock 2, Hudson, PA 18705. The notice must be postmarked within 30 days of the later of: (i) the date that you first agreed to the Terms; and (ii) the date that you became subject to this provision under Section 8(h). You must include all of the following in the written notice: (1) your name and mailing address; (2) the email address associated with your account; and (3) a clear statement that you want to opt out of this Agreement’s arbitration agreement.
If you have a dispute with another user on Essential.Supply or with any third party, you agree that Essential.Supply is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Essential.Supply its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Essential.Supply. As part of this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit this release to only include those claims that you may know or suspect to exist in your favor at the time of agreeing to this release.
You are not required to agree to receive promotional text messages, calls or pre-recorded messages as a condition of using Essential.Supply. By electing to submit your phone number to us and agreeing to these Terms, you agree to receive communications from the Essential.Supply Entities, including via text messages, calls, pre-recorded messages, and push notifications, any of which may be generated by automatic telephone dialing systems. These communications include, for example, operational communications concerning your account or use of Essential.Supply, updates concerning new and existing features on Essential.Supply, communications concerning promotions run by us or third parties, and news relating to Essential.Supply and industry developments. Standard text message charges applied by your telephone carrier may apply to text messages we send. If you submit someone else’s phone number or email address to us to receive communications from the Essential.Supply Entities, you represent and warrant that each person for whom you provide a phone number or email address has consented to receive communications from Essential.Supply.
If you wish to stop receiving promotional emails or promotional text messages, we provide the following methods for you to opt-out or unsubscribe: (a) follow the instructions we provide in the email or initial text message for that category of promotional emails or text messages or (b) if you have an account on Essential.Supply, you may opt-out or unsubscribe using your settings.
1. Notice for California Users. Under California Civil Code Section 1789.3, California users of Essential.Supply are entitled to the following specific consumer rights notice: The services are BrandNexity Commerce Group, Inc. d.b.a. Essential.Supply, 75 Stark Street, Suite 1, Dock 2, Hudson, PA 18705. If you have a question or complaint regarding the Service, please contact Essential.Supply by writing to our mailing address. California residents may reach the Consumer Assistance Unit of the Consumer Information Division of the California Department of Consumer Affairs, which may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
2. Supplemental Terms for Certain Services. Certain services offered on Essential.Supply may require you to enter into a separate agreement and/or be subject to additional terms. For example: placement of advertisements, participation in brand services, offering products for sale on Essential.Supply, each require you to enter into a separate agreement with terms specific to that service. In the event of any conflict between this Agreement and the terms of that separate agreement, the terms of this Agreement will control.
3. Application Provider Terms. If you access Essential.Supply through an Essential.Supply application, you acknowledge that this Agreement is between you and Essential.Supply only, and not with another application service or application platform provider (such as Apple, Inc. or Google Inc.), which may provide you the application subject to its own terms.
4. Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Pennsylvania and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in Luzerne County, Pennsylvania for any actions for which the arbitration provision, as set forth in Section 8, does not apply.
5. Export. Essential.Supply is controlled and operated from our United States offices in Pennsylvania. Essential.Supply software is further subject to United States export controls. No software for Essential.Supply may be downloaded or otherwise exported or re-exported in violation of any applicable laws or regulations. You also represent that you are not (1) located in a country that is subject to a U.S. government embargo, and (2) listed on any U.S. government list of prohibited or restricted parties.
6. Changes. We reserve the right to:
i. change the terms of this Agreement, consistent with applicable law;
ii. change Essential.Supply, including eliminating or discontinuing any information or services or other features in whole or in part; and
iii. deny or terminate your Essential.Supply account, or use of and access to Essential.Supply.
7. Languages. The English version of this Agreement will be the binding version and all communications, notices, arbitrations and other actions and proceedings relating to this Agreement will be made and conducted in English, even if we choose to provide translations of this Agreement into the native languages in certain countries. To the extent allowed by law, any inconsistencies among the different translations will be resolved in favor of the English version.
8. Assignment. No terms of this Agreement, nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Essential.Supply’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Essential.Supply may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion.
9. Waiver. Our failure to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.
10. Headings. Any heading, caption, or section title contained is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
11. Further Assurances. You agree to execute a hard copy of this Agreement and any other documents, and take any actions at our expense that we may request to confirm and effect the intent of this Agreement and any of your rights or obligations under this Agreement.
12. Entire Agreement and Severability. This Agreement supersedes all prior terms, agreements, discussions and writings regarding Essential.Supply and constitutes the entire agreement between you and us regarding Essential.Supply. If any part of this Agreement is found to be unenforceable, then that part will not affect the enforceability of the remaining parts of the Agreement, which will remain in full force and effect.
13. Survival. The following provisions will survive expiration or termination of this Agreement: Section 2 (Your Content), Section 3(d)(Restrictions) and 3(e)(Ownership), Section 6 (Disclaimers and Limitations of Liability), Section 7 (Indemnification), Section 8 (Dispute Resolution) and Section 10 (Miscellaneous).
Contact. Feel free to contact us by visiting Contact Us with any questions about this Agreement.
75 Stark Street, Suite 1, Dock 2
Hudson, PA 18705
Effective March 27, 2020