1. Use of Services
You may use the Site only if you can legally form a binding contract with Earthmuse, and only in compliance with these Terms and all applicable laws. You may simply browse the Site, or you may register with Earthmuse and create an “Account”. However, you must only provide us with true, accurate, current and complete information for your Account and/or Orders (defined below). If we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof). Any use or access by anyone under the age of 13 is not allowed. If you are under 13 years of age, you agree not to use the Services, Site or any other Earthmuse property. If you are based in the European Economic Area, you may only use the Site if you are over the age at which you can legally provide consent to data processing under the laws of your country. Using the Site may include downloading software to your computer, phone, tablet, or other device. You agree that we may automatically update that software, and these Terms will apply to any updates.
Subject to these Terms and our policies (which we may update from time to time in our sole discretion), we grant you a revocable, limited, non-exclusive and non-transferable license to use our Service. Use of the Site and Services for any commercial purposes is prohibited. If you are interested in purchasing a commercial account, please reach out to us at firstname.lastname@example.org.
If you create an Account, you are required to provide your name and email address and select a password (collectively, your “Account Information”), which you may not transfer to or share with any third parties. If someone accesses our Site or Services using your Account Information, we will rely on that Account Information and will assume that it is really you or your representative who is accessing the Site and Services. You are solely responsible for any and all use of your Account Information and all Orders (defined below) and activities that occur under or in connection with the Account. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action as we deem necessary or reasonable to ensure the security of the Site and your Account, including without limitation terminating your Account, changing your password, or requesting additional information to authorize transactions on your Account. You agree to be responsible for any act or omission of any users that access the Site or Services under your Account Information that, if undertaken by you, would be deemed a violation of these Terms. In no event and under no circumstances will Earthmuse be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of Earthmuse under this provision, (ii) any compromise of the confidentiality of your Account or password, and (iii) any unauthorized access to your Account or use of your Account or password. You may not use anyone else’s Account at any time, without the permission of the Account holder. Please notify us immediately if you become aware that your Account Information is being used without authorization. You agree not to register for more than one Account, register for an Account on behalf of an individual other than yourself without such individual’s authorization, or register for an Account on behalf of any group or entity.
These Terms govern any purchase order you make through the Site by employing Services, which may be, for instance, the purchase of framed artwork, fine artwork, housewares, etc. (each such purchase action, an “Order”). Your placement of an Order through our Site is an offer to purchase the product(s) and/or Services ordered and we may accept your Order by processing your payment and shipping the final product. Your receipt of an electronic or other form of Order confirmation does not signify our acceptance of your Order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your Order or any part of your Order. No Order will be considered accepted by Earthmuse until the final product(s) has been shipped to you. If one or more of the products in your Order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your Order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your Order, without prior notice to you, to supply less than the quantity you ordered of any item. Your Order will be deemed accepted by Earthmuse upon our delivery of the final products that you have Ordered to the extent such products are available to Earthmuse. We may require additional verifications or information before accepting any Order. All products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the products passes to you when Earthmuse provides the product(s) to a common carrier.
Any estimated shipping date provided by Earthmuse is based on the date that Earthmuse receives your Order, product availability and payment processing time, and does not include transit time. Earthmuse processes orders to shipping addresses globally.
Every product sold by Earthmuse is “made to order,” which means it is specifically manufactured just for you only after you have placed your Order. Accordingly, Earthmuse does not accept refunds, returns or exchanges for Orders. We are also unable to make any changes or cancellations to orders after 24 hours from the moment the Order is placed. If you believe you have made a mistake with your Order, please contact us immediately at email@example.com.
On rare occasions, one or more products in an Order may be damaged while in transit in possession of our shipping partners. If one or more of your product(s) arrives damaged, please send detailed, clearly visible photos of the damage including images of the packaging to firstname.lastname@example.org. In cases where one or more product(s) is materially damaged, Earthmuse may elect to restore or replace the damaged product(s) at Earthmuse’s sole discretion following a review of the photos submitted (“Damage Review”). If requesting a Damage Review, you expressly acknowledge and agree to the following: 1) photos of damaged areas of product(s) must be clearly visible and submitted in .jpeg or .png format; 2) photos of damage must be received by Earthmuse no fewer than seventy-two (72) hours following the indicated delivery date of the applicable Order by the shipping provider responsible for delivering the Order; 3) photos of the damage must have been taken immediately following receipt of the product(s), and the product(s) must not have been hung, placed or otherwise installed prior to photos of the damage being taken; 4) a Damage Review requires a minimum of thirty (30) business days to complete, and Earthmuse may elect to replace or repair the damaged product at its sole discretion; and 5) the delivery of a replacement product, if any, will be subject to then existing manufacturing capacity, inventory, availability and shipping timing, and you may be responsible for payment of return shipping in the event that Earthmuse elects to repair or replace the product(s).
5. Payment, Pricing and Products
To pay for an Order, you will need to provide Earthmuse with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Site to pay for such Order. You may pay for your Order via credit card or any other manner available on the Site. By submitting your payment information to us, you authorize us to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.
We make efforts to display our products and their colors as accurately as possible. Having said that, the displayed colors of the products will depend upon your monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the products. Products displayed may be out-of-stock or discontinued, and prices are always subject to change at our sole discretion. We cannot confirm the price of an item until you place an Order. In the event that you change your Order, the price of your Order will likely change. You authorize us to charge your payment method for any changes to your Order that you have initiated on the Site or otherwise (for instance, by way of an email request to Earthmuse). We are not responsible for typographical errors regarding price or any other matter.
6. Ownership of Technology and Content
You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site and/or Services (“Our Technology”) are: (i) copyrighted and trademarked by Earthmuse and our parents, subsidiaries, affiliates and licensors under United States and international copyright and trademark laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) exclusively owned by us or our parents, subsidiaries, affiliates and licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable parents, subsidiaries, affiliates or licensors. You must abide by all copyright and trademark notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms and Conditions grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to these Terms. Furthermore, nothing in these Terms will be deemed to grant, by implication, or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the Site, products or in the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Earthmuse or other entities belonging to Earthmuse. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains at all times with Earthmuse or those other applicable entities. Any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms. Subject to these Terms, Earthmuse grants you a limited license to reproduce portions of the information and content available on the Site and in the Services for the sole purpose of using the Site and Services for your personal, non-commercial purposes. Unless otherwise specified by Earthmuse in a separate license, your right to use such materials that you access or download through the Site or the Services is subject to these Terms. As a part of the Site and/or Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Earthmuse to monitor such materials and that you access these materials at your own risk.
You also acknowledge and agree that Earthmuse and the Site feature images of unique, highly valuable photographs and other works of art. When you access the Site and/or Services, you obtain access to various kinds of images, video, audio, data, and other information and materials, all of which we call “Content.” You agree not to use, edit, alter, reproduce or revise Content posted on any of our Sites, and you represent and warrant that you will not use any Content in any manner that: A) Infringes the copyright, trademark, trade secret, or other intellectual property or proprietary right of others; B) Violates the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation; C) Is false or inaccurate or becomes false or inaccurate at any time; D) Is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion; E) Discloses or provides information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others; F) Misrepresents your identity in any way; G) Contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; H) Advocates or encourages any illegal activity; or I) Has the potential to create liability for us or cause Earthmuse to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
7. General Rules of User Conduct
It is our goal to make access to our Site and Services a great experience for all of our users. To that end, you expressly agree not to, and represent and warrant that you will not use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, your use of the Site or Services, or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following: A) Conduct or promote any illegal activities while using the Site or Services; B) Upload, distribute or print anything that may be harmful to minors; C) Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site; D) Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights; E) Upload or transmit any form of virus, worm, Trojan horse, or other malicious code; F) Use the Site or Services to generate unsolicited email advertisements or spam; G) Use the Site or Services to stalk, harass or harm another individual; H) Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts); I) Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services; J) Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission; K) Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or L) Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
8. Modifications to / Discontinuance of the Site and/or Services
We reserve the right to modify or discontinue the Site or Services with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the Site and/or Services. You may need to update third-party software from time to time in order to use the Site and/or Services. If you object to any such changes, your sole recourse will be to cease access to the Site or Services. Continued access to the Site or Services will indicate your acknowledgement of such changes and satisfaction with the Site or Services as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES.
The Site and our Service are provided on an “as is” basis without warranty of any kind, whether express or implied. We specifically disclaim any and all warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement, and any warranties arising out of course of dealing or usage of trade. Earthmuse takes no responsibility and assumes no liability for any User Submitted Materials that you or any other person or third party posts or sends using our Service. You understand and agree that you may be exposed to Content and/or User Submitted Materials that are inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. We make no warranty that the products, Site or Services will meet your requirements, or that the Site and/or Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of our products, Site or Services, or that defects in the Site or Services will be corrected. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the download of any material and/or use of any product, Service or the Site. No advice or information, whether oral or written, obtained by you from us through the Site, Services, or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.
10. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO SELL THE PRODUCTS AND PROVIDE ACCESS TO THE SITE AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR INFRINGEMENTS, LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON THIRD PARTY MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES.
IN ANY EVENT, OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE TOTAL AMOUNT OF THE ORDER GIVING RISE TO OUR LIABILITY.
Without limiting the foregoing, under no circumstances will Earthmuse, or our parents, subsidiaries, directors, officers, shareholders, employees, contractors, agents, representatives or affiliates be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, pandemics or other global catastrophes, orders of domestic or foreign courts or tribunals, or non-performance of third parties (including, without limitation, any of our suppliers.
You agree to indemnify, defend and hold harmless Earthmuse, our parents, subsidiaries, affiliates, officers, directors, shareholders, co-branders and other partners, employees, consultants and agents (“Earthmuse Parties”), from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from: (i) your use of the products, Site or Services; (ii) your violation of these Terms or any other representation or warranty made to Earthmuse; (iii) your breach of any representation or warranty contained in these Terms: (iv) your User Submitted Materials; (v) your violation of any rights of any other person or entity; or (vi) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services. Earthmuse reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Site and/or Services.
Where Earthmuse requires that you provide an email address, you are responsible for providing Earthmuse with your most current email address. In the event that the last email address you provided to Earthmuse is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, then Earthmuse’ dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Earthmuse at the following address: email@example.com. Such notice shall be deemed given when received by the Earthmuse by email server.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Earthmuse without restriction. Any attempted transfer or assignment by you in violation hereof shall automatically and immediately be null and void.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of the same or any other provision on any other occasion.
15. Severability & Entire Agreement