Subscription and Services Agreement
Updated as of January 26, 2017
PLEASE READ THESE TERMS OF THE SUBSCRIPTION AND SERVICES AGREEMENT CAREFULLY BECAUSE IT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO YOUR USE OF OUR SERVICES AND CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. BY VISITING OR USING THIS SITE, OR ANY PAGE OF THIS SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN, AND YOU ACKNOWLEDGE THAT SUCH AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AND SERVICES AGREEMENT, PLEASE DO NOT USE THIS SITE.
“Content” shall mean any content, including, but not limited to, images, text, graphics, phone numbers, credit card information, MyGallons card information, MyGallons Fuel Card, links, that (a) you (or anyone authorized by you or using your account password) provide to MyGallons in connection with the MyGallons Services, including all electronic mail addresses, mailing addresses, phone numbers and personal information; (b) is displayed on, through or in connection with the MyGallons Services for which you subscribe; (c) that is associated with the name, identification or PIN number you register, renew, transfer or otherwise process through MyGallons Network, or (d) is posted by you (or anyone authorized by you or using your account password) on any MyGallons Network property or web site, including all information provided, such as E-mail addresses, phone information, and other personal information.
“E-mail(s)” shall mean any electronic message (including any content in such electronic message) sent or received by you through the MyGallons Network, including, without limitation electronic mail, text messages, SMS and MMS messages.
“MyGallons” shall mean MyGallons, LLC, and any parent, or subsidiary of MyGallons, LLC, and any of their successors and assigns.
“MyGallons Fuel Card” shall mean the fuel card or cards provided to you by MyGallons, if any, after your purchase of a Subscription as stated herein for the use by you of the MyGallons Services at participating fuel stations.
“MyGallons Network” shall mean all web sites owned, operated or controlled by MyGallons.
“MyGallons Price” shall mean the quoted price of fuel provided by MyGallons to you for making a pre-purchase or cash in of fuel as displayed on the MyGallons Network, which price is based on some of the following factors, among others: (a) the then current price of 87 octane regular unleaded fuel in your home area; (b) federal, state and local taxes (including, without limitation, taxes on fuel and sales taxes) in your home area; and (c) other pricing information. Please keep in mind that the price of fuel, and therefore your MyGallons Price frequently changes.
“MyGallons Services” shall mean the service or services for which you are registering and/or subscribing which shall include without limitation the pre-purchase and redemption by you of fuel on the MyGallons Network, whether or not you use a MyGallons Fuel Card.
“Personal Account” shall mean your personal MyGallons Services account, even if used for business purposes, on the MyGallons Network which contains your personal registration and membership information, and certain notices (which MyGallons may update from time to time), and provides an accounting of your pre-purchase amounts, redemption amounts, and balances of the MyGallons Services.
“Subscription” shall mean your commitment pursuant to this Agreement to purchase a membership for the MyGallons Services for a specified period of time and dollar amount (including an annual membership fee).
2. MyGallons Services.
2.2.1. Pre-Purchasing Fuel. If your annual membership is paid and in good standing, you may pre-purchase fuel at your then current MyGallons Price (plus any applicable fees) on the MyGallons Network using a credit card or by transferring funds to MyGallons from the checking account registered to your Personal Account via ACH or remote check printing.If your annual membership is not paid and in good standing and you place a pre-purchase order, you are authorizing MyGallons to deduct an amount of gallons with a value equal to the cost of your annual membership. MyGallons in its sole discretion reserves the right to limit the amount of fuel you pre-purchase at any one time or which may be held at any time in your Personal Account. MyGallons in it sole discretion may limit your maximum fuel pre-purchased per day and/or per month. YOU ARE NOT UNDER ANY CIRCUMSTANCES PERMITTED TO USE THE MYGALLONS SERVICES FOR INVESTMENT OR SPECULATIVE PURPOSES.
2.2.2. Redeeming Fuel. If you do not participate in the MyGallons Fuel Card program and your annual membership is paid and in good standing, you can redeem your pre-purchased fuel at your then current MyGallons Price on the MyGallons Network by utilizing the “cash in” process on the MyGallons Network. If you navigate to the “cash in” page and follow the directions to submit the cash in form, MyGallons will process your request and transfer funds via ACH directly into the checking account registered to your Personal Account within 10 business days of your request or as soon as the funds used to pre-purchase the redeemed fuel have been received and confirmed by MyGallons. The amount of cash transferred will equal the number of gallons cashed in multiplied by your then current MyGallons Price on the MyGallons Network (less any applicable fees). NOTE THAT EACH TIME YOU SUBMIT A FORM TO CASH IN FUEL, YOU WILL BE DEEMED TO REPRESENT THAT (I) YOU ARE NOT USING THE MYGALLONS SERVICES FOR ANY INVESTMENT OR SPECULATIVE PURPOSES; AND (II) SINCE THE DATE OF YOUR LAST CASH IN, YOU HAVE ACTUALLY PURCHASED AT LEAST AS MANY GALLONS AT THE PUMP AS YOU ARE ATTEMPTING TO CASH IN AT THE TIME. MYGALLONS RESERVES THE RIGHT TO REQUIRE YOU TO SUBMIT, AND YOU HEREBY AGREE TO SUBMIT TO MYGALLONS UPON REQUEST, RECEIPTS OF FUEL PURCHASES, CREDIT CARD STATEMENTS, OR OTHER DOCUMENTATION AS EVIDENCE OF YOUR COMPLIANCE WITH THIS PROVISION. YOU WILL NOT BE PERMITTED TO CASH IN MORE THAN 35 GALLONS PER VEHICLE IN ANY 30-DAY PERIOD WITHOUT PROVIDING EVIDENCE OF ACTUAL FUEL PURCHASES DURING THE PREVIOUS 30 DAYS, AND THE NUMBER OF GALLONS YOU CASH IN AT ANY TIME MAY NOT EXCEED THE NUMBER OF GALLONS YOU HAVE ACTUALLY PURCHASED AT THE PUMP DURING THE 30-DAY PERIOD PRIOR TO THE CASH IN DATE. If you choose to participate in the MyGallons Fuel Card program and your annual membership is paid and in good standing, each time you order a MyGallons Fuel Card via the cash-in process you will receive a pre-paid debit card loaded with the proceeds from the transaction for use at participating stations. The proceeds loaded on the card are equal to the number of gallons cashed-in multiplied by the then current MyGallons price for your state minus applicable fees. Even if you choose to participate in the MyGallons Fuel Card program, there may be situations in which you decide to use the MyGallons Services at non-participating fuel stations. In these situations, you will be unable to use the MyGallons Fuel Card, and you will initially pay the non-participating fuel station for the fuel out of pocket. After you have paid for your fuel at the pump, you can follow the procedures described above for redeeming pre-purchased fuel without a MyGallons Fuel Card.
2.3 Modification or Cancellation of MyGallons Services. MyGallons reserves the right to limit, modify or discontinue the MyGallons Services at any time. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT MYGALLONS MAY CHANGE, AMEND AND RESCIND THE FEATURES, PRICING AND TECHNICAL REQUIREMENTS OF THE SUBSCRIPTION, THE MYGALLONS SERVICES OR ANY MYGALLONS SERVICES PACKAGE AT ANY TIME BY POSTING NOTICE ON THE MYGALLONS NETWORK. If you are dissatisfied with any modification to the MyGallons Services, your sole remedy will be to terminate the MyGallons Services in the manner described in this Agreement.
2.4 Special Terms Relating to MyGallons Services-General.
2.4.1 Additional Benefits Provided by MyGallons. In connection with the MyGallons Services, MyGallons will: (a) assist you in the registration and renewal of the Subscription; (b) assist you in the purchase of the MyGallons Services; (c) provide answers to commonly asked questions you might have regarding the MyGallons Services and provide answers to questions submitted to MyGallons via the MyGallons Network; (d) provide information by sending E-mail to the E-mail address that you registered and have kept current with MyGallons; and (d) provide information regarding the MyGallons Services and your Personal Account (including, without limitation, price adjustments) on your Personal Account page on the MyGallons Network.
2.5 Other Terms Relating to MyGallons Services.
2.5.1 MyGallons Fuel Card. If you choose to participate in an available MyGallons Fuel Card program, a MyGallons Fuel Card will be sent to the mailing address you provide in your Personal Account. It may take up to 20 business days for you to receive the MyGallons Fuel Card. Upon receipt, you may be required to activate the MyGallons Fuel Card before you are able to use it. You agree that MyGallons reserves the right to charge you a fee to replace any MyGallons Fuel Card that has been lost or destroyed, or if you require additional MyGallons Fuel Cards. If you choose to participate in a MyGallons Fuel Card program but do not receive a MyGallons Fuel Card within 20 business days, contact MyGallons via the MyGallons Network. The MyGallons Fuel Card shall be used for the purchase of fuel at participating filling stations only. If you use the MyGallons Fuel Card for any other purchase (non-fuel), (i) your Personal Account may be terminated, and (ii) MyGallons may charge you a fee that will be either deducted from your Personal Account in gallons or charged directly to the credit card or checking account registered to your Personal Account.
2.5.2 Timing of Pre-purchases and Redemptions. When you pre-purchase any of the MyGallons Services there may be up to a 30 day delay for your funds to clear and become available for redemption, depending on your payment method. You acknowledge and agree that any attempted redemptions during the delay period after you have made a pre-purchase of the MyGallons Services may be rejected by MyGallons or create an overdraft on your account for which you will be charged an overdraft fee in accordance with this Agreement. When you redeem any of the MyGallons Services via the MyGallons Network, there may be up to a 10 business day delay for your funds to clear and become available in your checking account.
2.5.3 Calculation of Redeemed Gallons. When you redeem gallons through a MyGallons Fuel Card transaction that has not been loaded with a fixed amount of money from a cash in request, MyGallons calculates the number of gallons to be deducted from your Personal Account by subtracting the gallons requested for the cash-in from your Personal Account balance. Fees are deducted from the cash-in request and the balance is loaded on the MyGallons Fuel Card.
2.5.4 Price Adjustments for Taxes. MyGallons may make price adjustments to your Personal Account to the extent there is any change in applicable federal, state, local, or other taxes in your home area. Price adjustments made by MyGallons pursuant to this Section or to Section 14 will generally be effected by increasing or decreasing, as applicable, the remaining balance, in gallons of fuel, in your Personal Account. However, MyGallons reserves the right to make such adjustment by charging your credit card or checking account for the value of the adjustment in dollars. All such price adjustments will be reflected on your Personal Account page on the MyGallons Network. You have up to, but no more than, 90 days from the date of any adjustment made by MyGallons to your Personal Account to dispute such adjustment via the MyGallons Network, time being strictly of the essence.
2.5.5 MyGallons Fuel Card Participating Stations. MyGallons Fuel Cards may only work at participating service fuel stations accepting the payment network displayed on the card such as VISA, MasterCard, Discover, etc. You may be required to present the card to the attendant at participating stations and may not be able to “swipe” your card at the pump due to restrictions imposed by the payment network.
2.5.7. Changing your address. Since the price of fuel varies by state (primarily due to taxes), if you change the state of your home address registered to your Personal Account, MyGallons will automatically adjust the gallon balance in your Personal Account to reflect the difference in MyGallons Price between the state you are changing from and the state you are changing to. This adjustment may result in an increase or a decrease in the gallon balance in your Personal Account, and will be accomplished by multiplying your gallon balance by the MyGallons Price in the state you are changing from, then dividing the total by the MyGallons Price in the state you are changing to, with both of those MyGallons prices as they are in effect at the time of the address change. You will not be charged any fee for this adjustment, but the adjustment may take up to 5 business days to be effected, so you will need to monitor your balance closely during that period to avoid potential overdrafts.
3.1 You agree to pay for the MyGallons Services on time and in full.
3.2 You agree that the credit card information or checking account information you provide is valid, unexpired and corresponds to an account that you are authorized to use. You authorize MyGallons to charge the credit card and/or checking account registered to your Personal Account in order to collect payment for the Subscription and MyGallons Services and for any fees as described herein or on the MyGallons Network, including, without limitation, annual membership fees, fuel pre-purchase amounts, price adjustments, overdraft fees, processing fees, transaction fees, MyGallons Fuel Card replacement fees, credit card being cancelled, over the limit or dishonored fees and shipping and handling fees. Alternatively, MyGallons may collect payment for any of the foregoing by debiting a number of gallons from your Personal Account equal to the dollar value of the amount owed, with gallons valued at the MyGallons Price at the time of such debit. Foreign credit cards are not accepted. MyGallons reserves the right to charge you a convenience fee for the use of your credit card when purchasing the MyGallons Services. You agree and acknowledge that you are responsible for any and all charges and fees from your cell phone provider(s) for the use by you of any text messaging services which may become available and that you so elect to utilize in connection with the MyGallons Services.
3.3 You are responsible for payment of all taxes and duties relating to the MyGallons Services you have purchased, including, without limitation, all sales, use, transfer, privilege, and excise taxes and duties, whether national, international, state, or local, however designated. If you buy or sell or subscribe to any products or services through the MyGallons Network or in connection with the MyGallons Services, you shall be responsible for all taxes and duties associated with the purchase or sale of, or subscription to, such products or services, whether such taxes or duties be national, international, state, or local, however designated and you shall be subject to and responsible to pay any increases to taxes.
3.4 If any payment is overdue or unaccepted for insufficient funds, you will cease to have the privileges reserved for paying users of the MyGallons Services for which you have registered and subscribed (although you will continue to be bound by your obligations under this Agreement), including, without limitation, the right to use the MyGallons Services for further redemptions. If you participate in the MyGallons Fuel Card program, you agree that your MyGallons Fuel Card will not function for future fuel redemptions until you have replenished and paid for the MyGallons Services. In this case, MyGallons reserves the right to terminate this Agreement immediately and charge you fees as described herein or on the MyGallons Network.
3.5 If you initiate a charge back request to reverse payments for purchases made using a debit or credit card you will be charged a $50 processing fee. In addition to the processing fee, you will be responsible for any and all expenses incurred from any reduction in the price of fuel from the time of the pre-purchase of fuel until the time MyGallons is notified of the charge back request. In the event that a redemption is processed prior to a charge back being processed you will be responsible for any and all expenses incurred and payments made as a result of the redemption request. You are responsible for any and all unauthorized use of your credit and debit cards. MyGallons will provide reasonable assistance in your efforts to recuperate your expenses incurred by the unauthorized use of your card by providing you with all available information collected by MyGallons related to the unauthorized purchase.
4. Proprietary Rights.
5. Term and Renewal of Subscription, MyGallons Price, and Overdraft Fees.
5.1 The Term of this Agreement shall be for one year from the date when you created your account unless this Agreement is terminated earlier pursuant to the terms and conditions of this Agreement. The Term of this Agreement shall be automatically renewed for additional one-year period(s) unless you opt out of your Subscription on your Personal Account page no later than 10 days prior to the expiration of your then-current Term. The annual membership fee for any additional Term of your Subscription is subject to change in MyGallons’ sole discretion and notice of such change will be provided to you by MyGallons within a reasonable time prior to the expiration of your then-current Term. Upon your renewal of the initial Term and any subsequent Term, you agree to pay such annual membership fee and agree that MyGallons may (i) charge the credit card or debit the checking account provided by you or (ii) debit your Personal Account balance in gallons in order to effectuate such payment. If the credit card or checking account information you provided is expired or is no longer valid for any reason, we will attempt to contact you at the E-mail address you have provided. If you do not make payment of the next annual membership fee within seven (7) days of the expiration of the then-current Term, MyGallons reserves the right to terminate this Agreement in accordance with Section 6.4 below.
5.2 You agree and understand that the MyGallons Fuel Card and the MyGallons Services are not transferable.
5.3 Overdraft and Automatic Pay Replenishment. Your Personal Account shall reflect the balance of the fuel you have available for redemption. If you exceed your balance, you agree that MyGallons will charge you via your credit card, debit card, or debit your checking account for the actual cost of any fuel cashed-in by you which exceeds your available balance and MyGallons will also charge your credit card or debit your checking account for an overdraft fee.
6. Termination of Services.
6.2 You may terminate the MyGallons Services and this Agreement at any time.
6.3 6.3 Except as specified elsewhere in this Agreement, in the event of any termination of the MyGallons Services and this Agreement pursuant to Section 6, you will receive a credit for the number of unused pre-purchased gallons remaining in your Personal Account. The per gallon price of this credit will equal the lower of (i) your average cost per gallon of the remaining gallons in your MyGallons account (determined by MyGallons using a first in, first out calculation, in which the first gallons you purchased are sold, used or redeemed first); or (ii) the MyGallons price for your state at the time the MyGallons Services are terminated, less any set-off amount pursuant to the next sentence. The credit may be used by MyGallons to set-off any amounts owed to MyGallons for price adjustments, overdraft fees, processing fees, transaction fees, MyGallons Fuel card replacement fees, shipping and handling fees or any other reason. Termination of the MyGallons Services by you within 30 days of opening your account will result in the credit refunded to the payment method used to purchase the service and or gallons. Termination of the MyGallons Services by you between 31 and 90 days of opening your account will result in a refund equal to 50% of the credit refunded to the payment method used to purchase the service and or gallons. Termination of the MyGallons Services by you after 90 days of opening your account will not be entitled to a refund. Termination of the MyGallons Services by us with cause, which may include but are not limited to making false representations to MyGallons, will not be entitled to any refund.
6.4 6.4 In the event your paid Subscription expires, this Agreement shall terminate. Any remaining balance may be used by MyGallons to set-off any amounts owed to MyGallons for price adjustments, overdraft fees, processing fees, transaction fees, MyGallons Fuel card replacement fees, shipping and handling fees or any other reason. If any amounts sent to you pursuant to this paragraph are not redeemed by you within one year of the date MyGallons sent them to your attention, then you agree and acknowledge that such amounts shall be treated in accordance with applicable law, which may include reversion of the funds to MyGallons or to your home state as abandoned funds.
6.5 All provisions of this Agreement, which, by their nature, impose continuing obligations, shall survive termination of this Agreement.
7. Representations and Warranties.
You make the following representations and warranties:
7.2 That the information you provide to MyGallons when registering for the MyGallons Services is true, complete, and accurate and that you will immediately update such information (including, without limitation, any credit card or checking account information) should it become out of date.
7.3 That, in connection with the MyGallons Services, you will comply with all applicable laws and regulations.
7.4 That your use of the MyGallons Services will not violate any contractual commitment of yours.
7.5 That you are a natural person (i) who is a United States citizen, (ii) who is a permanent resident of the United States of America or any of its possessions or territories, or (ii) whose primary place of domicile is in the United States of America or any of its possessions.
7.6 That your use of the MyGallons Services will be for personal use or your own business use and that you will not resell the MyGallons Services and use it in any fashion for commercial gain.
7.7 THAT YOU WILL NOT USE THE MYGALLONS SERVICES FOR INVESTMENT OR SPECULATIVE PURPOSES.
MyGallons reserves the right to modify, rescind, amend or limit the MyGallons Services from time to time, for any reason, and without notice, including the right to discontinue or terminate any or all of the MyGallons Services. Any modifications to the MyGallons Services or this Agreement shall become effective immediately upon posting such changes to the MyGallons Network. Please review the Agreement as posted on the MyGallons Network periodically so you will be apprised of any changes.
10. Disclaimer of Warranties.
THE MYGALLONS SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IN CONNECTION WITH THE MYGALLONS SERVICES ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MYGALLONS DISCLAIMS ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE MYGALLONS SERVICES, AS WELL AS ANY WARRANTIES THAT THE MYGALLONS SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. MYGALLONS SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE MYGALLONS NETWORK, OR PROVIDE THE MYGALLONS SERVICES. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
11. Limitation of Liability.
MYGALLONS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF MYGALLONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL MYGALLONS BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE RELEVANT MYGALLONS SERVICES THAT IS THE SUBJECT OF COMPLAINT OR ANY TERMINATION. THESE LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE MYGALLONS SERVICES, FROM RELIANCE ON THE MYGALLONS SERVICES, FROM INABILITY TO USE THE MYGALLONS SERVICES, FROM LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE MYGALLONS NETWORK, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE MYGALLONS SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. MYGALLONS SHALL NOT BE LIABLE OR RESPONSIBLE TO YOU OR ANYONE CLAIMING THROUGH YOU, UNDER ANY CIRMCUMSTANCES OR LEGAL THEORIES FOR PROBLEMS ARISING OR CAUSED DIRECTLY OR INDIRECTLY BY OR FROM THIRD PARTIES, SUCH AS, BUT NOT LIMITED TO, FUEL STATIONS, PAYMENT NETWORKS OR ANY OTHER THIRD PARTY PROVIDER, WHICH WOULD LIMIT, DIMINISH, DELAY OR ALTER THE MYGALLONS SERVICES TO YOU OR CAUSE YOU ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES.
12. Indemnity and Release.
13. Governing Law and Forum for Disputes.
All legal issues arising from or related to the use or misuse of the MyGallons Services shall be construed in accordance with, and all questions with respect thereto shall be determined by, the laws of the State of Florida applicable to contracts entered into and wholly to be performed within said state and you hereby consent to personal jurisdiction and venue in any state or federal court in Florida in connection with any controversy or claim arising or relating to this Agreement or your use or misuse of the MyGallons Services. Any dispute by you with respect to the MyGallons Services as provided by MyGallons by shall be submitted to binding arbitration. The same shall be settled by arbitration in the State of Florida, before three disinterested arbitrators in accordance with the procedural rules of the American Arbitration Association. Such arbitrators shall be appointed as follows: The party desiring arbitration shall appoint an arbitrator by written notice to the second party. Within fifteen (15) days of receipt by the second party of such notice, the second party shall appoint an arbitrator by written notice to the first party. Should the second party not appoint an arbitrator, the matter shall be arbitrated by the arbitrator appointed by the first party, and the cost of such arbitrator shall be shared equally by you and MyGallons. Should the second party appoint an arbitrator, the two (2) appointed arbitrators shall appoint a third arbitrator within thirty (30) days of the appointment of the second arbitrator. If the two (2) arbitrators cannot agree upon a third arbitrator within said time, the third arbitrator shall be appointed by the presiding judge of the highest level state trial court located in the State of Florida. The three (3) arbitrators so appointed shall forthwith proceed to arbitrate the dispute. The decision of the arbitrators shall be final, conclusive and binding on the parties, but the powers of the arbitrators are hereby expressly limited to the determination of factual issues, and the arbitrators shall have no power to reform, supplement or modify this Agreement. The arbitrators shall make only required findings of fact incident to an arbitrable dispute, which findings shall be set forth in reasonable detail in a written decision by the arbitrators. You and MyGallons shall each bear the cost of the arbitrator appointed by it, and share equally in the cost the third arbitrator and of any other costs and expenses of such arbitration, and each shall separately pay its own attorneys’ fees and expenses.
THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND MYGALLONS WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable as any court order and are subject to very limited review by a court. By using MyGallons Services you consent to these restrictions.
Should a dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and MyGallons, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Miami Dade County, Florida. If either party employs attorneys to enforce any right in connection with any dispute or lawsuit the prevailing party shall be entitled to recover reasonable attorneys’ fees.
14. Force Majeure.
In the event that MyGallons is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, hurricanes, tornados, floods, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss or fluctuations in heat, light, or air conditioning (“Force Majeure”), then MyGallons performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence. MyGallons will make price adjustments to your MyGallons Services to the extent there is any change to the price of fuel resulting from a Force Majeure event or casualty applicable to your location area or which would affect your MyGallons Price.
15. No Resale, Assignment, or Sublicensing.
You agree not to resell, assign, sublicense, otherwise transfer, or delegate your rights or obligations under this Agreement without the prior express written authorization of MyGallons.
16. Limitation of Actions.
YOU AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OR MISUSE OF THE MYGALLONS SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR WILL FOREVER BE BARRED.
17. Relationship of Parties.
MyGallons and its users are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party pursuant to this Agreement has authority to enter into agreements of any kind on behalf of the other, and neither party shall be considered the agent of the other.
18. Non-Waiver and Separability.
MyGallons failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. If a court or arbitrator of competent jurisdiction holds that any provision of this Agreement is invalid, the parties nevertheless agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions in this Agreement remain in full force and effect.
19. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
20. Entire Agreement.
21. Legal Notices.
All legal notices or communications pursuant to this Agreement shall be deemed delivered upon receipt by the party to whom such communication is directed, at the following addresses: (a) if to MyGallons, such notices shall be addressed to MyGallons, LLC, 1111 Lincoln Road 4th Floor, Miami Beach, FL 33139 , attention: General Counsel; and (b) if to user, such notices shall be addressed to the electronic mail address provided by user upon registration. It shall be the user’s sole obligation to maintain a current electronic mail address in his or her registration information. In the event that the user fails to supply an accurate working electronic mail address or fails to update such information after changing electronic mail addresses, all notices to the user shall be deemed to have been received within one (1) day after transmission or attempted transmission to the address supplied by the user.
22. Risk Disclosure Statement.
THE FUTURE COST OF GASOLINE IS UNCERTAIN AND SUBJECT TO CHANGE. YOU SHOULD NOT EXPECT THE PRICE OF GASOLINE TO INCREASE IN COST. GASOLINE COSTS MAY BE AFFECTED BY SUPPLY, MARKET FACTORS, AND GOVERNMENTAL ACTIONS, AMONG OTHER FACTORS. THE RISK OF LOSS IN PURCHASING THE MYGALLONS SERVICES CAN OCCUR. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER SUCH PURCHASE OF THE MYGALLONS SERVICES IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CONDITION. YOU SHOULD BE AWARE OF THE FOLLOWING: (1) IF YOU PURCHASE OUR SERVICES AT YOUR MYGALLONS PRICE, YOU MAY SUSTAIN A LOSS AT THE TIME YOU ELECT TO REDEEM, IF THE PRICE OF GASOLINE HAS DECLINED; AND (2) IF WE TERMINATE THE MYGALLONS SERVICES OR THIS AGREEMENT OR IF YOU ELECT TO TERMINATE THIS AGREEMENT OR DO NOT PROVIDE THE REQUIRED FUNDS WITHIN THE PRESCRIBED TIME AS STATED IN THIS AGREEMENT, YOUR PERSONAL ACCOUNT MAY BE LIQUIDATED AT A LOSS, AND YOU WILL BE LIABLE FOR ANY RESULTING DEFICIT IN YOUR ACCOUNT.
23. Assumption of Risk and Release of Claims.
NOW THEREFORE, knowing the risks described above, and in consideration of your participation in the MyGallons Services and pre-purchase and redemption of fuel at your MyGallons Price, the receipt and sufficiency of which is hereby acknowledged, you hereby, in addition to the releases stated in the above paragraphs, for yourself, your heirs, executors, administrators, and assigned, waive, release, covenant not to sue and forever discharge MyGallons and their members, agents, servants and employees of and from any and all manner of action or actions, causes or causes of action, including, but not limited to negligence, suits, debts, accounts, damages, claims and demands of whatsoever in law, or in equity or otherwise, which you may acquire by reason of loss of your money while participating in the MyGallons Services, arising out of, or connected with, the MyGallons Services. Further, you agree to defend, indemnify and hold harmless MyGallons from any and all claims, demands, and/or causes of action arising out of your own actions and your election to purchase gasoline at your MyGallons Price while participating in the MyGallons Services.
YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AGREE TO BE BOUND BY AND FULLY COMPLY WITH ALL THE TERMS AND CONDITIONS DESCRIBED HEREIN.