AGREEMENT. These Terms and Conditions, in conjunction with the Acceptable Use Policy (AUP) available at http://www.earthstores.com, represent the complete agreement and understanding between Earthstores.com Inc. ("Earthstores"), a Delaware Corporation, and you ("Vendor" or "you") and supersede any other written or oral agreements, other than applicable software license agreements, intellectual property restrictions, and copyright protections. USE OF YOUR ACCOUNT CONSTITUTES YOUR APPROVAL AND ACCEPTANCE OF THIS AGREEMENT. ACCEPTANCE OF THIS AGREEMENT IS A CONDITION OF USE FOR THE EARTHSTORES SOFTWARE AND SYSTEMS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT PERMITTED TO USE THE EARTHSTORES SOFTWARE AND SYSTEMS AND SHOULD CONTACT EARTHSTORES IMMEDIATELY TO INITIATE CLOSURE OF YOUR ACCOUNT.
MODIFICATIONS. Earthstores reserves the right to change and amend the Terms and Conditions or the Acceptable Use Policy at its sole discretion. In addition, Earthstores may modify the price of its services or change/discontinue the products and services offered with 30 days notice published on the Earthstores web site (http://www.earthstores.com). Your continued use of Earthstore's services following such notification will be deemed acceptance of the modification.
TRANSFERABILITY. This service is to cover E-commerce services by the Vendor only and does not extend to any other person, corporation or entity, regardless of their relationship with the Vendor. This account is considered personal and private, and under no circumstances is the account login name or password to be shared by the account holder with outside parties. Accounts that have been transferred to other parties or show other activity in violation of this paragraph without Earthstores' written permission, are subject to immediate cancellation.
BILLING. Billing terms are prepaid only and the first month service fee will be charged to your account immediately at the end of the thirty day trial period. The Vendor is responsible for any and all fixed and accumulative charges for their account. Vendor agrees to pay all billed amounts until the Vendor cancels the account or discontinues credit card billing. Vendor agrees to provide Earthstores with accurate and complete billing information, including legal name, address, telephone number, and credit card information (if applicable), and to update this information within 30 days of any change to it. Accounts with balances over 14 days are subject to termination and referral to a collection agency. All Vendors paying by check are subject to a $2 invoice fee and must pay on a quarterly or annual basis. Payments by check not made within 14 days of the billing date are to be considered delinquent and may be subject to reasonable collection and legal fees as well as interest accrued at 1.5% per month, or the state legal limit, whichever is lower. Returned checks are subject to a charge of $25.00.
TERM. The term of this agreement will be on a month to month basis. The term will automatically renew for successive monthly periods at pricing applicable at the time, unless a cancellation request is received in writing prior to the conclusion of the current term. Vendor may cancel their service at any time, however, Earthstores does not prorate monthly service fees and refunds for partial months will not be issued.
ACCOUNT SUSPENSION. The Vendor agrees that Earthstores has the right to suspend or terminate an account for any reason, including without limitation the investigation of policy or agreement violations, inappropriate use as defined by Earthstores, use of excessive system or network resources, or nonpayment of service fees.
INFORMATION DISCLOSURE. To comply with applicable laws and lawful government requests, to operate its systems properly, to investigate possible violations of its AUP, or to protect itself or its customers, Earthstores reserves the right to access and disclose any information. Earthstores will fully cooperate with law enforcement authorities in investigating suspected violations of law, and reserves the right to report to law enforcement any suspected illegal activity.
SUPPORT. Earthstores assumes basic technical competence on the part of the account holder, as well as the ability to independently obtain and configure the necessary software and hardware to use the account. Earthstores will provide free phone support for most technical issues relating to the setup of the Vendor’s account and for technical issues that may arise over the lifetime of the account; however, Earthstores has the right to determine the extent to which it will work with any Vendor.
SOFTWARE. This is an Agreement for Services, and Vendor is not granted a license to any software by this Agreement. Vendor will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
LIMITED WARRANTY. Vendor acknowledges that all services are provided on an "As Is" basis. No warranty is made by Earthstores regarding any information, services or products provided through, in connection with, or located on the computer systems of Earthstores or other services provided by Earthstores or its affiliates, and Earthstores hereby expressly disclaims any and all warranties, including without limitation: 1) any warranties as to the availability, accuracy, or content of information, products, or services, and 2) any warranties of merchantability or fitness for a particular purpose. No oral advice or written information given by Earthstores, its employees, directors, agents or other representatives, shall create or expand any representation or warranty nor shall Vendor be entitled to rely on any such information or advice.
LIMITED LIABILITY. Any liability of Earthstores, including without limitation any liability for damages caused or allegedly caused by any failure or performance, error, omission, interruption, deletion, defect, delay or operation or transmission, communications line failure, theft or destruction of or unauthorized access to alteration of , or use of records, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action, shall be strictly limited to the amount paid by or on behalf of the Vendor to Earthstores for the current month.
ATTORNEY FEES. In any litigation or other proceeding by which one party seeks to enforce its rights under this agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations to the agreement, the prevailing party shall be awarded reasonable attorneys fees, together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
CHOICE OF LAW; VENUE; JURY TRIAL. This agreement shall be construed in accordance with and governed by the internal laws of the State of California without given effect to choice of law. Any legal action or other legal proceeding relating to this agreement or the enforcement of any provision of this agreement shall be brought or otherwise commenced in a state or federal court located in the County of Los Angeles, California. Each of the parties hereto irrevocably waives the right to a jury trial in connection with any legal proceeding relating to this agreement or the enforcement of any provision of this agreement.
ENFORCABILITY. If any provision of this agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to effect the original intentions of the parties, and the remainder of this agreement shall remain in full force and effect.