Earth Terms of Service

Effective: May 11, 2020

These Terms of Use (“Terms”) govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the “Services,”) made available in the United States and its territories and possessions by Earth Rides, INC. and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Earth”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND EARTH. In these Terms, the words “including” and “include” mean “including, but not limited to.”

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Earth may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

Earth Services

Earth provides Users the ability to arrange and schedule transportation by way of the Earth Rides mobile application.

As a User, you authorize Earth to match you with a Driver based on factors such as your location, your destination, estimated pickup time, user preferences, platform efficiency and to cancel an existing match and rematch based on the same considerations.

Eligibility

Earth may only be used by individuals who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. Earth is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the Earth, each User shall create a User account. Each person may only create one User account, and Earth reserves the right to deactivate any additional or duplicate accounts.

(a) User Accounts.

In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). Account registration requires you to submit to Earth certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by Earth. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Earth in writing, you may only possess one Account.

(b) User Requirements and Conduct.

The Service is not available for use by persons under the age of 18 or the age of legal majority in your jurisdiction (if different than 18), unless a specific Service permits otherwise. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage to any other party. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.

(c) Contact between User and Earth.

You agree that Earth may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with an Earth account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any services. You also understand that you may opt out of receiving messages from Earth at any time by emailing earthrideshare@gmail.com

(d) User Provided Content.

Earth may, in Earth’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Earth through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Earth, you grant Earth a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Earth’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Earth the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Earth’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Earth in its sole discretion, whether or not such material may be protected by law. Earth may, but shall not be obligated to, review, monitor, or remove User Content, at Earth’s sole discretion and at any time and for any reason, without notice to you.

(e) Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Earth does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

Payment, Fares, and Fees

(a) Payment.

You understand that use of the Services may result in charges to you for the services you receive (“Charges”). Earth will receive and/or enable your payment of the applicable Charges for services obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges, processing fees for split payments and tips.

All Charges and payments will be enabled by Earth using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Earth may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by Earth.

(b) Facilitation of Charges.

All Charges are facilitated through a third-party payment processor (Stripe, Inc.) Earth may replace its third-party payment processor without notice to you. Charges shall only be made through the Earth app. With the exception of tips, cash payments are strictly prohibited. Earth may group multiple charges into a single aggregate transaction on your payment method based on the date(s) they were incurred. If you don’t recognize a transaction, then check your ride receipts and payment history.

(c) No Refunds.

All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of Earth, any disruption to the Services, or any other reason whatsoever.

(d) Coupons.

Earth, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. You may receive coupons that you can apply toward payment of certain Charges upon completion of a Ride. Coupons are only valid for use on the Earth mobile application and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined, and if the cost of your ride exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the Ride. Earth reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that Earth determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. For quoted or variable fares, Earth may deduct the amount attributable to the Service Fee, Tolls, or Other Charges before application of the coupon. Additional restrictions on coupons may apply as communicated to you in a relevant promotion or by clicking on the relevant coupon within the Promotions section of the Earth app.

(e) Credit Card Authorization.

Upon addition of a new payment method or each ride request, Earth may seek authorization of your selected payment method to verify the payment method, ensure the ride cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.

(f) Fares.

There are two types of fares, variable and quoted. Variable Fares. Variable fares consist of a base charge and incremental charges based on the duration and distance of your ride. For particularly short rides, minimum fares may apply. Please note that we use GPS data from your Driver’s phone to calculate the distance traveled on your ride. We cannot guarantee the availability or accuracy of GPS data. If we lose signal we will calculate time and distance using available data from your ride. Quoted Fares. In some cases, Earth may quote you a Fare at the time of your request. The quote is subject to change until the ride request is confirmed. If during your ride you change your destination, make multiple stops, or attempt to abuse the Services, we may cancel the fare quote and charge you a variable fare based on the time and distance of your ride. Earth does not guarantee that the quoted fare price will be equal to a variable fare for the same ride. Quoted Fares may include the Fees and Other Charges below, as applicable.

(g) Fees and Other Charges.

  • Service Fee. You may be charged a “Service Fee” for each ride.
  • Cancellation Fee. After requesting a ride you may cancel it through the app, but note that in certain cases a cancellation fee may apply. You may also be charged if you fail to show up after requesting a ride.
  • Damage, Cleaning or Lost and Found Fees. If a Driver reports that you have materially damaged the vehicle, you shall be responsible for the cost of repair for damage to, or necessary cleaning of, vehicles and property resulting from use of the Services under your Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). Earth reserves the right (but is not obligated) to verify or otherwise require documentation of damages prior to processing the Damage Fee. Earth reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning using your payment method designated in your Account.
  • Tolls. In some instances, tolls (or return tolls) may apply to your ride.
  • Other Charges. Other fee and surcharges may apply to your ride, including actual or anticipated airport fees, state or local fees, or event fees as determined by Earth or its marketing partners. In addition, where required by law Earth will collect applicable taxes.
  • Tips. Following a ride, you may elect to tip your Driver in cash or through the Earth mobile application. You may also elect to set a default tip amount or percentage through the app; Any tips will be provided entirely to the applicable Driver.

Modifications to the Agreement and Supplemental Terms

Earth reserves the right to modify the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Earth reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of Earth services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).

Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on Earthrideshare.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Dispute Resolution and Arbitration Agreement

(a) Agreement to Binding Arbitration Between You and Earth.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH EARTH ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST EARTH, AND ALSO PRECLUDE YOU FROM PARTICIPIATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST EARTH BY SOMEONE ELSE. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

You and Earth agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Earth, and not in a court of law. Notwithstanding the foregoing, where you allege claims of sexual assault or sexual harassment occurring in connection with your use of the Services, you may elect to bring those claims in a court of competent jurisdiction instead of arbitration. Earth agrees to honor your election of forum with respect to your individual sexual assault or sexual harassment claim but in so doing does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided in the following paragraph, which will continue to apply in court and arbitration), controversy, claim or dispute.

You acknowledge and agree that you and Earth are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Earth otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Earth each retain the right to bring an individual action in small claims court and 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.

(b) Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Tennessee.

(c) Process, Location and Procedure.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Tennessee and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

Unless you and Earth otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Earth submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the 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.

(d) Arbitrator’s Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.

(e) Fees and Changes.

Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).

At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.

Although under some laws Earth may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, Earth agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that the claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).

(f) Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

Disclaimers; Limitation of Liability; Indemnity.

(a) DISCLAIMER.

Earth is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of Earth services. In addition, earth makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability, or availability of the services or that the services will be uninterrupted or error-free. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.

(b) LIMITATION OF LIABILITY.

IN NO EVENT SHALL EARTH BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF EARTH, EVEN IF EARTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EARTH SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; EARTH SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND EARTH’S REASONABLE CONTROL.

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, BUT YOU AGREE THAT EARTH HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION SERVICES PROVIDED TO YOU OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EARTH’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON EARTH’S CHOICE OF LAW PROVISION SET FORTH BELOW.

(c) INDEMNITY.

You agree to indemnify and hold earth and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the services; (ii) your breach or violation of any of these terms; (iii) earth’s use of your user content; or (iv) your violation of the rights of any third party, including third party providers.

Choice of Law

These Terms are governed by and construed in accordance with the laws of the State of Tennessee, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Tennesseans to assert claims under Tennessee law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of Tennessee law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending Tennessee law to you if you do not otherwise reside in Tennessee. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 5, the Federal Arbitration Act shall apply to any such disputes.

General

(a) License.

Subject to your compliance with these Terms, Earth grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Earth and Earth’s licensors.

(b) Restrictions.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Earth; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

(c) Third Party Services and Content.

The Services may be made available or accessed in connection with third party services and content (including advertising) that Earth does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Earth does not endorse such third party services and content and in no event shall Earth be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service.

(d) Ownership.

The Services and all rights therein are and shall remain Earth’s property or the property of Earth’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Earth’s company names, logos, product and service names, trademarks or services marks or those of Earth’s licensors.

(e) General.

You may not assign these Terms without Earth’s prior written approval. Earth may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Earth’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Earth, or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Earth’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Earth in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.