BOOSTER FUELS, INC. TERMS OF SERVICE
Last updated: August 4th 2015
1. CONTRACTUAL RELATIONSHIP
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Booster. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Booster may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Booster may amend the Terms related to the Services from time to time. Amendments will become effective upon the publication of such amended Terms at this location. Please check this location from time to time. Your continued access or use of the Services after such posting constitutes your consent to be bound by the amended Terms. If you do not agree with the amended Terms, please do not use the Services.
2. The Services
The Services constitute a technology platform that enables users of Booster’s applications or websites (each, an “Application”) to arrange and schedule logistics services, including delivery of fuel and other products and services. Unless otherwise agreed by Booster in a separate written agreement with you, the Services are made available solely for your personal and noncommercial use.
Subject to your compliance with these Terms, Booster grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal and noncommercial use. Any rights not expressly granted herein are hereby reserved by Booster and Booster’s licensors.
RESTRICTIONS You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Booster; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
THIRD PARTY SERVICES AND CONTENT
OWNERSHIP The Services and all rights therein are and shall remain Booster’s property or the property of Booster’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Booster’s company names, logos, product and service names, trademarks or services marks or those of Booster’s licensors.
3. YOUR USE OF THE SERVICES
USER ELIGIBILITY AND ACCOUNTS
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Booster certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Booster’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Booster in writing, you may only possess one Account.
You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to Booster or any other party. In certain jurisdictions and with certain fuel products, Booster’s mobile refueling service can only be used when there is an emergency fuel need. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to use of the Services if you refuse to provide proof of identity.
By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services.
Booster may, in Booster’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and, subject to any additional terms that Booster establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Booster; (iii) may be disabled by Booster at any time for any reason without liability to Booster; (iv) may only be used pursuant to the specific terms that Booster establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Booster reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Booster determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
USER PROVIDED CONTENT
Booster may, in Booster’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Booster through the Services textual, audio, and visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Booster, you grant Booster a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Booster’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Booster the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Booster’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Booster in its sole discretion, whether or not such material may be protected by law. Booster may, but shall not be obligated to, review, monitor, or remove User Content, at Booster’s sole discretion and at any time and for any reason, without notice to you.
NETWORK ACCESS AND DEVICES
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Booster does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the services or goods you receive from Booster (“Charges”). Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Booster. All Charges are due immediately and payment will be facilitated by Booster using the preferred payment method designated in your Account, after which Booster will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Booster may use a secondary payment method in your Account, if available.
As between you and Booster, Booster reserves the right to establish, remove and revise Charges for any or all services or goods obtained through the use of the Services at any time in Booster’s sole discretion. Booster may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Services or goods at any time prior to provision of Services, in which case you may be charged a cancellation fee.
You understand and agree that, while you are free to provide additional payment as a gratuity to any Driver who provides you with services or goods obtained through the Services, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Services, you may have the opportunity to rate your experience and leave additional feedback about your experience.
Booster may, in its sole discretion, round up or round down amounts that are payable to Booster to the nearest whole functional base unit; for example, Booster will round up an amount of $41.505 to $41.51, and $41.491 to $41.490.
5. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BOOSTER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BOOSTER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BOOSTER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OF FUELS PROVIDED TO YOU. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
BOOSTER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF BOOSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOOSTER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES. BOOSTER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BOOSTER’S REASONABLE CONTROL. IN NO EVENT SHALL BOOSTER’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500). IN ADDITION, WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF, OR RELATING TO, ANY OF THE FOLLOWING, REGARDLESS OF WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE:
- LEAVING THE GAS TANK DOOR OPEN — YOU WILL LEAVE THE GAS TANK DOOR TO YOUR VEHICLE OPEN AT YOUR OWN RISK, AND THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM LEAVING YOUR GAS TANK DOOR OPEN;
- ANY SIPHONING OF GASOLINE FROM YOUR VEHICLE;
- ACCESS BY ANY THIRD PARTY TO ANY AREA WITHIN WHICH YOUR VEHICLE IS LOCATED, WHETHER OR NOT YOU HAVE GIVEN US ANY KEY, PIN OR PASSCODE TO ALLOW US ACCESS TO SUCH AREA;
- ANY SPILLAGE OF GASOLINE, WHETHER OR NOT RELATED TO OUR SERVICES; AND
- THE GASOLINE USED TO FILL YOUR GAS TANK.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
You are responsible for your use of the Services, and you will indemnify and hold Booster and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Booster Entities”) from and against any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in any way connected with: (i) your access to, use of, or alleged use of, the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (iii) Booster’s use of your User Content; (iv) your violation of the rights of any third party, including any intellectual property right or publicity, confidentiality, other property, or privacy, right; or (v) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Booster. You acknowledge and agree that you and Booster are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Booster otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
ARBITRATION RULES AND GOVERNING LAW
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
ARBITRATION LOCATION AND FEES
If you commence arbitration in accordance with these Terms, Booster will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Seattle, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Booster for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Booster will not seek, and hereby waives all rights Booster may have under applicable law to recover, attorneys’ fees and expenses if Booster prevail in arbitration.
NO CLASS ACTION
YOU AND BOOSTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Booster agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
CHANGES If Booster makes any future change to this arbitration provision, other than a change to Booster’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Booster’s address for Notice, in which case your account with Booster will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If the subsection (Enforceability) is found to be unenforceable or if the entirety of this Section 6 is found to be unenforceable, then the entirety of this Section 6 (other than, in the latter case, this subsection (Enforceability) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 7 will govern any action arising out of or related to these Terms.
7. CHOICE OF LAW
These Terms are governed by and construed in accordance with the laws of the State of Washington, U.S.A., without giving effect to any conflict of law principles.
CLAIMS OF COPYRIGHT INFRINGEMENT
Claims of copyright infringement should be sent to Booster’s designated agent. Please visit Booster’s web page for the designated address and additional information.
Booster may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Booster, with such notice deemed given when received by Booster, at any time by first class mail or pre-paid post to Booster Fuels, Inc, Attn: Legal, 1425 Broadway #20-6478, Seattle, WA 98122.
You may not assign these Terms without Booster’s prior written approval. Booster may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Booster’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Booster as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Booster’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Booster in writing.
Contacting Booster If you have any questions about this privacy statement, the practices of Booster, or your dealings with Booster, you may contact us at Booster Fuels, Inc, Attn: Legal, 1425 Broadway #20-6478, Seattle, WA 98122, or at email@example.com.
NOTICE REGARDING APPLE
If you are using our mobile applications on an iOS device, the terms of this section (Notice Regarding Apple) apply. You acknowledge that these Terms are between you and Booster only, not with Apple, and Apple is not responsible for the Services. Apple has no obligation to furnish any maintenance or support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claim by you or any third party relating to the Services or your possession or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Services or your possession and use of the mobile application infringe that third party’s intellectual property rights. you agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.