2. THE SERVICES
The Services constitute a technology platform that enables users of EZFill’s mobile applications or websites provided as part of the Services (the “Applications”, and each, an “Application”) to arrange, schedule, and pay for fuel, and the delivery of fuel, for passenger motor vehicles, which may be provided by EZFill or third party providers of such Services, including independent third party providers and third party logistics providers under agreement with EZFill or certain of EZFill’s affiliates (“Third Party Providers”). The Services are solely for your personal, noncommercial use.
3. USER LICENSE
Subject to your compliance with these Terms, EZFill grants you a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by EZFill. 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 EZFill; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
4. USER ACCOUNT
Use of the Services may require that you register and/or create an account (“Account”). To register and create an Account, you must select an account designation and password and provide certain personal information. In consideration of the use of the Services provided by EZFill, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete, and c) provide and maintain at least one valid payment method (i.e., credit card). If you provide any information that is untrue, inaccurate, not current or incomplete, or EZFill has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, EZFill has the right to refuse any and all current or future use of the Services (or any portion thereof).By creating an Account, you agree that EZFill may send you informational text (SMS) messages as part of the business operation of EZFill and/or of your use of the Services.
You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activities that occur under your password or Account, and for any other actions taken in connection with the Account or password. You agree to (a) immediately notify EZFill of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. EZFill will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.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.
5. PAYMENT FOR SERVICES
You understand, acknowledge, and agree that use of the Services will result in charges to you (“Charges”). Charges paid by you are final and non-refundable, unless otherwise determined by EZFill. All Charges are due immediately and payment will be facilitated by EZFill using the payment method designated in your Account. If your payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that EZFill may use a secondary payment method in your Account, if available.
EZFill, in our sole and absolute discretion, at any time, for any reason whatsoever, with or without notice, reserves the right to establish, modify, amend, change, remove and/or revise Charges for any or all Services. EZFill will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. EZFill 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 at any time prior to the dispatch of a delivery vehicle, in which case you will incur Charges. In the event that a delivery vehicle is unable to fill your vehicle with fuel for any reason outside of EZFill’s control, including but not limited to, your vehicle not being in the location designated via the Application, your vehicle’s gas tank door(s) being locked and/or inaccessible for any reason, EZFill will attempt to contact you by and through the Application; should the delivery vehicle remain unable to fill your vehicle with fuel within five (5) minutes of the delivery vehicle’s arrival at the location designated via the Application, you will incur Charges. The current minimum charge is a “delivery fee” of $4.99, which you will incur regardless of any promotional offers and/or discounts to which you may have previously been eligible.
You agree to indemnify and hold EZFill and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) EZFill’s use of your Submissions or Account data; or (iv) your violation of the rights of any third party through your use of the Services.
THE INFORMATION, CONTENT, PRODUCTS, SERVICES, AND MATERIALS AVAILABLE THROUGH THE APPLICATIONS AND/OR SERVICES (WHETHER PROVIDED BY EZFILL, OR A THIRD PARTY, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EZFILL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, EZFILL MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES REQUESTED THROUGH THE USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EZFILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING LOST DATA, LOST PROFITS, PROPERTY DAMAGE, OR PERSONAL INJURY (EVEN IF EZFILL HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES. EZFILL ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE APPLICATIONS. EZFILL ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, fuel, the delivery of fuel, THE SPILLAGE OF ANY FUEL BEFORE, DURING, OR AFTER THE DELIVERY OF FUEL TO YOU,YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES, DELAY OR FAILURE IN PERFORMANCE OF THE SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE APPLICATIONS, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO VIA THE APPLICATIONS, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. IN ADDITION TO THE FOREGOING, YOU SPECIFICALLY AGREE THAT EZFILL WILL NOT BE LIABLE TO YOU FOR ANY DAMAGE(S) INCURRED AS A RESULT OF, INCLUDING, BUT NOT LIMITED TO: YOU LEAVING YOUR VEHICLE DOOR(S) AND/OR GAS TANK DOOR(S) UNLOCKED AND/OR OPEN, THIRD PARTY ACCESS TO ANY AREA WITHIN WHICH YOUR VEHICLE IS LOCATED REGARDLESS IF YOU PROVIDED US WITH KEYCARD(S), PIN(S), PASSCODE(S) AND/OR KEY(S) TO ACCESS THAT AREA, AND THE SIPHONING AND/OR ATTEMPTED SIPHONING OF FUEL FROM YOUR VEHICLE BY ANY THIRD PARTY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL EZFILL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, FOR ALL SERVICES PROVIDED BY EZFILL EXCEED THE AMOUNT PAID BY YOU TO EZFILL.
IF YOU ARE DISSATISFIED WITH THE SERVICES OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES, EXCEPT AS MAY BE PROVIDED FOR IN THIS SECTION 8.
9. DISPUTE RESOLUTION
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 EZFill, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
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 arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless otherwise agreed between you and EZFill, the arbitration will be conducted in the State of New York, in the County of New York. If your claim does not exceed $5,000, then the arbitration will be conducted solely on the basis of documents you and EZFill submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $5,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
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 to the extent necessary to provide relief warranted by the claimant’s individual claim. EZFill hereby waives all rights EZFill may have under applicable law to recover attorneys’ fees and expenses if EZFill prevails in arbitration.
Notwithstanding the provisions of the modification-related provisions above, if EZFill changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing EZFill written notice of such rejection by email from the email address associated with your Account to:Support@ezfillapp.com, within 30 days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and EZFill in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
You acknowledge and agree that you and EZFill 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 EZFill 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.
10. APPLICABLE LAW
These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles.
EZFill 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 EZFill, with such notice deemed given when received by EZFill, at any time by first class mail or pre-paid post to EZFill Holdings Inc., Attn: User Notices – Legal, 333 W 41 Street, 6th fl, Miami Beach, FL 33140..
EZFill may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of EZFill’s equity, business or assets; or (iii) a successor by merger.
If any portion of these Terms is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of these Terms shall continue to be enforceable and valid according to terms contained herein.
14. ENTIRE AGREEMENT
15. NO WAIVER
The failure of EZFill to exercise or enforce any right or provision of the Terms shall not constitute a waiver of said right or provision. Neither party hereto shall be deemed to be in default of any provision of the Terms or for failure in performance resulting from acts or events beyond the reasonable control of such party and arising without its fault or negligence, including, but not be limited to, acts of God, civil or military authority, interruption of electric or telecommunication services, civil disturbances, acts of war or terrorists, strikes, fires, floods or other catastrophes.
16. Headings & Construction
The section titles in the Terms are for your convenience only and carry no contractual or legal effect whatsoever. The language in these Terms shall be interpreted in accordance with its fair meaning and shall not be strictly interpreted for or against either party.
17. Contact EZFill
For questions regarding these Terms, contact EZFill at www.ezfillapp.com, or at EZFill Holdings Inc., 333 W 41 Street, 6th fl, Miami Beach, FL 33140.
Copyright © 2021 EZFill Holdings Inc. All Rights Reserved.