Effective Date: November 30, 2020
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE APP OR SERVICES.
1. About the Terms
2. About the Platform
4. Payment Terms
5. User Conduct Guidelines
6. Intellectual Property Ownership
7. Third Party Terms
8. Warranties, Disclaimers, Limitation of Liability & Indemnification
9. Governing Law & Dispute Resolution
1. ABOUT THE TERMS
1.1 Key Terms
• “App” refers to the downloadable mobile application owned and operated by Company through which access to the Services is available. References to the “App” include any and all features, functionality, tools and content available on or through the application including, without limitation SmartPay Rewards℠ and SmartPay Business™, and/or Fastrac Business.
• “Company,” “we,” or “us” refer to collectively EG America, LLC, our subsidiaries, and related banners including Certified Oil, Cumberland Farms, Fastrac, Kwik Shop, Loaf’N Jug, Minit Mart, Quick Stop, Tom Thumb and Turkey Hill, and our respective officers, directors, employees, contractors and agents.
• “Linked Users” refers to individuals that you designate as sub-accounts (secondary account holders) to access and use your SmartPay Rewards℠ account.
• “Platform” refers, collectively, to the Website, App, cards, and any and all other technology through which Company provides the Services.
• “Services” refers to the payment, reward, and loyalty programs provided by Company and its service providers, and any and all related services and promotions, either on or offline.
• “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the App, and accessing or using the Website.
• “Website” refers to collectively the websites owned or operated by Company (including the websites currently located at EG America, Certified Oil, Cumberland Farms, Fastrac Cafe, Kwik Shop, Loaf ‘N Jug, Minit Mart, Quik Stop, Tom Thumb, Turkey Hill, and SmartPay Rewards), through which access to the Services is available. References to the “Website” include any and all features, functionality, tools, and content available on or through each such website.
1.2 Platform and Service Rules and Supplemental Terms
• IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PLATFORM AND/OR THE SERVICES;
• YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
• LIMITATIONS OF OUR LIABILITY TO YOU; AND
• A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES ARE CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
Company reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform and Services after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform and Services.
No other modification, amendment, supplement of or to the Terms will be binding on Company unless it is in writing and signed by an authorized representative of Company.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
2. ABOUT THE PLATFORM
2.1 License to Use
Subject to your compliance with the Terms, Company grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform and Services, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal or internal use only, and not for use for any external business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform and Services as provided by Company, in the manner permitted by the Terms.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- THE APP AND CERTAIN FEATURES AND FUNCTIONALITIES OF THE PLATFORM ARE ONLY AVAILABLE FOR USE AT PARTICIPATING COMPANY LOCATIONS.
- COMPANY DOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM WILL BE CONTINUOUS OR ERROR-FREE.
- IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR AND YOUR LINKED USERS’ USE OF THE PLATFORM AND SERVICES THROUGH YOUR ACCOUNT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.3 Modifications and Updates to the Platform and Services
Company reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Services, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of any Platform content at our sole discretion at any time without prior notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Company has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.4 International Users
The Platform is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
2.5 Credit Checks
For individual consumer Users, in order to use SmartPay Rewards℠, Users must pass a personal credit check conducted by the National Payment Card Association d/b/a Zipline.
2.6 Corporate Users
For business/fleet Users, in order to use the SmartPay Business™ App or Fastrac Fleet Services or Fastrac Business, business/fleet Users must receive credit approval from Company or a third party service provider through a separate credit application process. The credit application process includes a credit check and approval of the business/fleet, and is not a personal credit check and approval.
2.7 Rewards & Restricted Content
From time to time, Company may provide eligible customers opportunities to receive and participate, through the Platform, certain coupons, clubs, rewards, member pricing, promotional messages or similar content related to specific products sold by Company (“Rewards”), including but not limited to opt-in/opt-out opportunities for age-restricted products such as alcohol or tobacco (“Restricted Content”), which opportunities may be exclusive to a particular Platform User or subset of Users. A determination of eligibility for Rewards may be based upon information provided to Company through your enrollment and use of the Platform, such as information about your age, your state of residence, and your purchase history, such as that related to the Rewards or Restricted Content. By using the Platform, you consent to such Rewards opportunities, including opt-in/opt-out Restricted Content, upon a determination of eligibility in the sole discretion of Company.
3.1 Account Registration
While certain areas of the Platform are publicly available, you must register for a User account before you are able to use any of the Services. You may register to create an account directly via the App or Website. You may not register for an account on behalf of any person (other than yourself).
Your account and account profile page will be created based upon the information you provide to us. You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a password or PIN, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords or PINs (passwords or PINs that use a combination of upper and lower case letters, numbers and symbols) with your Company account or any other account that you may connect to your Company account. You agree not to disclose your password or PIN to any third party, and you agree to immediately notify Company of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, including by your Linked Users, whether or not you have authorized such activities or actions. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
For corporate Users, designated administrators will set up a primary account, and will designate the individuals who are eligible to sign up for subaccounts. Administrators for each User will have access to manage and view activities associated with the subaccounts registered to that User. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts”).
You may designate Linked Users at any time. Unlike primary account-holder Users that must be eighteen (18) years of age or older, Linked Users must be sixteen (16) years of age or older at the time of registration. All activities conducted by Linked Users in connection with your account shall be deemed your activity for the purpose of these Terms. While certain Linked Users may also be independent Users of the Platform, all activities by Linked Users when acting as a secondary account holder for your account will be tied to your account including, without limitation, access to any available funds and promotional credits.
3.2 Account Suspension and Cancellation
You may cancel your account at any time.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform and Services at any time for any reason. Company reserves the right to suspend or terminate your account or your access to the Platform if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, out dated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “General User Conduct” section below and elsewhere in the Terms.
If Company has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Company’s reasonable satisfaction.
4. PAYMENT TERMS
4.1 Payment Accounts
YOU ARE RESPONSIBLE FOR PROVIDING COMPANY WITH VALID PAYMENT ACCOUNT DETAILS. Please note that the payment information, including name and contact information, that you submit when you register for our App will be used and shared with our payment processing services provider and otherwise used in accordance with our Privacy Notice.
If you wish to designate a different payment account, or if there is a change in your payment account status, you must change your information in your account. This may temporarily disrupt your access to your account while Company verifies your new payment information.
4.2 Transaction Disputes
If you would like to dispute any transactions made in store or at the pump, please contact customer service by emailing email@example.com.
4.3 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the App through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Company is not liable in any way for any third party charges.
5. USER CONDUCT GUIDELINES
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below. You are not authorized to access or use the Platform:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
- Further, you may not: designate a Linked User under the age of sixteen (16);
- access, copy, distribute, share, publish, use or store any Platform content, including by disclosing, selling, renting, distributing or exposing any Platform content to a third party, using it for marketing purposes, or otherwise using it for any purposes unrelated to the Platform;
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any Platform content that belongs to Company or any third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Company, unless you have been specifically authorized to do so in a separate agreement with Company;
- use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, Company’s name, any Company trademark, logo or other proprietary information, without Company’s express written consent;
- interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
Company reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law. Without limiting the foregoing, you acknowledge that Company has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform and Services by any User if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Company, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Company, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Services (including for customer support purposes).
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 The Platform
The Platform and Services, and all features, functionality, tools and content thereof, are protected by copyright, trademark and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Services, and all intellectual property rights therein are the exclusive property of Company and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Company (the “Company Marks”) are the property of Company, and that you are not permitted to use the Company Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Company or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Company’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at firstname.lastname@example.org. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Company. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Company or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Company all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Company’s rights in such improvements, enhancements and modifications.
7. THIRD PARTY TERMS
7.1 Links to Third Party Websites and Services
The Platform may also provide links to third-party websites, resources or services including, without limitation, the National Payment Card Association d/b/a Zipline and Wright Express® Financial Services Corporation. You acknowledge and agree that Company is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Company of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
7.2 Apps Downloaded from Third Party App Stores
Our App may be available for download from third party app stores which are not owned or operated by Company. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.
Without limiting the foregoing, any Apps accessed through or downloaded from Apple’s App Store (an “App Store Download”) may only be used (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms and Conditions. Without limiting the foregoing, the following applies to App Store Downloads:
- You acknowledge and agree that (i) these Terms are between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Download and content thereof. Your use of the App Store Download must comply with the App Store Terms and Conditions.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Download.
- In the event of any failure of the App Store Download to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Download to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Download. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
- You acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Download or your possession and use of the App Store Download, including: (i) product liability claims; (ii) any claim that the App Store Download fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third-party claim that the App Store Download or your possession and use of that App Store Download infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You acknowledge and agree that Apple and its subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Download, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Download against you as a third party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third party terms and conditions when using the App Store Download.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to Company that:
(i) you have the power and authority to accept and agree to the Terms;
(ii) you own or control all of the rights necessary to grant the rights and licenses granted herein;
(iii) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with your access to or use of the Platform and Services;
(iv) the exercise by Company of the rights granted by you hereunder will not cause Company to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
(v) all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM AND SERVICES, OR THAT USE OF THE PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
• THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM AND SERVICES AND ANY LINKED USERS’ USE OF THE PLATFORM AND SERVICES UNDER YOUR ACCOUNT IS AND REMAINS WITH YOU.
• WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM AND SERVICES, (II) ANY LINKED USERS’ USE OF THE PLATFORM AND SERVICES (III) ANY PLATFORM CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE PLATFORM AND SERVICES.
• IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PLATFORM AND SERVICES, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
• CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM AND THE SERVICES SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Company its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions and Services available on and through the Platform, (ii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your negligence or willful misconduct.
8.7 Obligation to Defend
You agree that, at Company’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Company may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Company (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND COMPANY HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of New York without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York County, New York before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Company agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform and Services (collectively, “Disputes”) shall be brought in the federal or state courts located in New York, New York and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Company retains the right to submit a Dispute to any court of competent jurisdiction. Company also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST COMPANY ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND COMPANY OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Company. We will notify you of amendments to this section by posting the amended Terms on any of the Company’s Websites listed in Section 1.1 If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
Our collection and use of information about Users is governed by our Privacy Notice. By accessing and using the Platform, you consent to the collection and use of this information as set forth in the Privacy Notice. As part of providing you the Platform, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services, which you may not be able to opt-out from receiving.
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense by you without the foregoing consent will be null and void. Company may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
10.5 Survival of Terms
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Company (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the App and Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
10.12 Contact Us
If you have any questions or concerns, please contact Company at email@example.com.
You can also write to us at:
EG America, LLC
165 Flanders Road
Westborough, MA 01581
You can also call us at: 1-800-225-9702
10.13 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice: Complaints regarding the Platform or Services or requests to receive further information regarding use of the Platform or Services may be sent to the above address or to firstname.lastname@example.org.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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