Updated as of April 8, 2011
You can enter your wireless or mobile device number or e-mail address on our Service (e.g., a mobile phone number) and even if you do not continue with the authentication or registration process, you may receive a limited number of e-newsletters or messages (unless you Opt-out).
When we use the term “Post”, “Posted” or “Posting” we are referring to each and every time you submit, provide, furnish, share, message, instant message, exchange, transmit or communicate any information (including Personal Information and profile information), ideas, images, audio-visual material, opinions, files, messages. In fact any time you communicate or make anything available or accessible on our Service or Website you will have “Posted” it.
Except for some limited time, special or unique promotions or offers we tell you about separately, Subscribers are required to pay a regular fee or charge and are subject to the additional terms and conditions set forth in our Subscription and Services Agreement.
If you sign up for our subscription Services, and become a Subscriber, you must separately agree to comply with and be bound by the terms and conditions of our Subscription and Services Agreement, which will then also form part of your agreement with us. As a Subscriber, you must agree to pay the fees and charges applicable to your subscription as described in our Subscription and Services Agreement.
If you use or take advantage of any features, functions or services of our Services or you participate or engage in promotions, activities, create, sign up or participate in events or transactions in connection with our Services, you will be confirming your agreement to be bound by and comply with any and all additional terms and conditions that we indicate apply to you in doing or attempting to do those things (referred to individually and collectively, as “Additional Terms”).
As a general rule, unless a specific promotion is available to you, unless you become a Registered User or a Subscriber, you will not be able use our subscription Services, or take advantage of any features or functions which require registration or subscription.
Our registration and subscription process is structured to comply with the requirements of your internet, wireless or mobile carrier involved in transmitting messages in connection with our Service. You must become a Registered User to take advantage of our Services. Registered Users and Subscribers must provide us with a verifiable e-mail address or mobile or wireless device number and you will be required to follow our instructions for authentication during the registration process.
We make reasonable commercial efforts to ensure only users who have been authenticated use our Services and we may require you to go through an authentication process each time you register or if you become a Subscriber. This is part of our normal security and verification procedures and while it may sometimes seem repetitive, these precautions are designed for your safety and the safety of all our users and Subscribers. We require all Registered Users to have a user name (not your real name), password and/or a log-in code (which may initially be the PIN). If you register on our Website, then you may select your own code or password during the process. The PIN, password, codes and other unique log-in letters, numbers and symbols we will refer to as your “password” and once your registration (or subscription, if you become a Subscriber) is complete, we will allow you to change your password at any time and from time to time. We will refer to the unique combination of your e-mail address or mobile or wireless number (or your user name once you register or subscribe) and your password together, as your “User ID.”
After a Subscriber purchases Services, there can be up to a 10 day delay before the Services are available for use.
We may require certain additional verification or confirmation of your status and if you are a Minor, may require additional assurances and proof of consent from a parent or legal guardian. These are part of the registration or subscription process when you attempt to register and/or subscribe to our Services.
To become, be and remain a Registered User or a Subscriber and take advantage of the mobile or wireless feature and functions of any of our Services, you must also have (1) an active contract with a mobile or wireless carrier licensed to distribute Service messages and Postings or access to a wireless or mobile communications network through which we make our Service available AND (2) mobile or wireless carrier services compatible with our Service and capable of enabling you to Post, send and receive messages, and/or use and download Content onto your designated wireless or mobile device. You, not us, are responsible for all equipment, software and communications resources and facilities necessary to connect to our Services and/or our Website, including, but not limited to, a wireless or mobile device that is in working order, compatible and suitable for use in connection with our Services. You must ensure your wireless or mobile device is compatible with our Services and is correctly configured and capable to enable SMS and, if applicable, downloads and/or Posting of WAP or any other Content. To receive WAP Content you will need to click on the link found in the SMS or the WAP ‘push’ link sent by us to commence the WAP Content download. If you cause or we suspect you may be causing interference with our Service in any way, you may be immediately disconnected and we may, in our sole discretion, terminate your use of our Website and/or Services and your status as a user, Registered User and/or Subscriber without any refund. Upgrades, enhancements or changes to our Service which require changes to your wireless or mobile devices, equipment, software or communications resources or facilities are strictly your responsibility.
Your use of our Service is subject to all applicable local, provincial, state, national and international laws and regulations and international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your internet service, SMS messaging address, MMS messaging address, wireless or mobile device number, email address, account or User ID. You may not use our Service, allow or enable others to use our Service or knowingly allow use of our Service by others, in any manner that is, attempts or is likely to:
(a) be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive which may or may appear to impersonate anyone else.
(b) affect adversely or reflect negatively on us, our Service or on our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion of our Service, from becoming a Subscriber or from advertising, linking or becoming a supplier or licensor to us;
(c) send or result in the transmission of junk email, chain letters, duplicative or unsolicited messages, “spamming” (i.e., SPAM) or “phishing”;
(d) be used for commercial or business purposes, including, without limitation, advertising, marketing or offering goods or services, whether or not for compensation or through links with any other web site or web pages;
(e) transmit, distribute or upload programs or material that contain malicious code, such as viruses, time bombs, cancel bots, worms, Trojan horses, spyware or other potentially harmful programs, material, code or information;
(f) forge any TCP/IP packet header or part of the header information in any message, email, chat or posting for any reason;
(g) violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order, any treaties or violate or infringe upon any intellectual property rights, rights of publicity or privacy or any other rights of ours or of any other person, firm or enterprise;
(i) modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of our Service or the rights or use and enjoyment of our Service by others; or
(j) collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of our Service.
Do not send us any original creative ideas, suggestions, content or materials intending or requesting that we review or evaluate them for use by us or any other party. We have no obligation or responsibility whatsoever for unsolicited submissions and if you send us any for any of those purposes it will automatically become our property, without any obligation of confidence or restrictions on our use or disclosure. We will then exclusively own all rights in unsolicited submissions, including derivative works, worldwide, and we are entitled to unrestricted use for any purpose, without attribution, compensation or otherwise to you or anyone else.
From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties such as our advertisers, sponsors, or promotional partners as a result of or in connection with your use of our Service. For example, we may permit advertisers to display marketing and promotional material on our Service which we feel may be of interest to you and other users. All such communication, interaction and participation is strictly and solely between you and the third party(ies) involved and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the third party or any goods or services you may purchase or obtain from any such third party).
OUR SERVICE IS MADE AVAILABLE “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR ANY GUARANTY OR ASSURANCE THE SERVICE WILL BE AVAILABLE OR PERFORM AS DESCRIBED. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
We are also not liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of our Service. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of our Service.
YOU UNDERSTAND AND AGREE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER WE NOR ANY PARENT, SUBSIDIARY, SUCCESSOR OR ASSIGN NOR OUR OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, ADVERTISERS, SPONSORS, BUSINESS OR PROMOTIONAL PARTNERS, WIRELESS OR MOBILE CARRIERS, OPERATIONAL SERVICE PROVIDERS OR SUPPLIERS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGE, DIRECT OR INDIRECT, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER IN CONNECTION WITH, AS A RESULT OF OR ARISING FROM OUR SERVICE, REGARDLESS OF THE FORM OF ACTION, THE LEGAL THEORY OR BASIS OF THE CLAIM AND WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF ANY LIMITATION ON REMEDIES, DAMAGES OR LIABILITY IS PROHIBITED OR RESTRICTED BY LAW, WE SHALL REMAIN ENTITLED TO THE MAXIMUM DISCLAIMERS AND LIMITATIONS AVAILABLE UNDER THIS AGREEMENT, AT LAW AND/OR IN EQUITY, HOWEVER, IN NO EVENT SHALL OUR LIABILITY TO YOU FOR DAMAGES OR OTHERWISE EXCEED ONE HUNDRED DOLLARS (US $100), NOTWITHSTANDING ANY CLAIM THAT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
You agree if you have a dispute with us or are dissatisfied with any aspect of our Service or any of the terms and conditions of your agreement with us, termination of your subscription plan, registration and use of our Service is your sole right and exclusive remedy, even if that right or remedy is deemed to fail of its essential purpose. You acknowledge and agree we have no other obligation, liability or responsibility to you or any other party. Under no circumstances shall we have any obligation to refund any monies actually paid by you for the Service.
Our Service has a finite, and therefore limited, capacity and some Postings and messages may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become inoperable. You acknowledge and agree we assume no liability, responsibility or obligation to transmit, process, store, receive or deliver any Postings or messages or for any failure, inaccuracy or delay. Do not rely on the timeliness or performance of our Service for any transactions, Posting, messages or other communications.
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.