TERMS OF USE

Effective Date: May 27th, 2022

Version 1

 

1.     USE OF THE SERVICE

These Terms of Use (the “Terms”) govern your use of the Circle K charging network for electric vehicles in the United States, which includes the use of the Circle K Charge mobile application (the “App”), the website https://driver.us.circlekcharge.com/signUp (the “Website”) and/or the charging sites (collectively, the “Service”) owned and operated by Circle K Stores Inc. and its affiliates (collectively, “Circle K”, the “Company”, “we”, “us” or “our”).  These Terms constitute a binding legal agreement between you, as a user of the Service, and us, as the provider of the Service.  Your access to and use of the Service requires your compliance with these Terms.  By downloading, accessing and/or using any portion of the Service, including charging in this network, you agree to be bound by these Terms and acknowledge and consent to our data practices described in our Privacy Policy.

 

IMPORTANT: THESE TERMS INCLUDE A CLASS ACTION WAIVER AND RESOLUTION OF DISPUTES BY ARBITRATION, INSTEAD OF COURT.  SEE SECTION 18 BELOW FOR MORE INFORMATION.

 

The App and the Website are not intended for download, access or use outside of the United States. You are responsible for ensuring that your access to or use of the Service and the information, content, and other material available on or through it (collectively, the “Content”) are legal in each jurisdiction in or through which you download, access or view the App, the Website and such Content.

 

2.     AMENDMENTS TO THE TERMS; ADDITIONAL TERMS

It is your responsibility to review the posted Terms and any applicable Additional Terms (as defined below) each time you use the Service.  Each time you sign in to or otherwise access or use the Service you are entering into a new agreement with us on the then applicable Terms and you agree that we may notify you of new Terms by posting them on the Service (or in any other reasonable manner of notice which we elect), and that your use of the Service after such notice constitutes your going forward agreement to the new Terms for your new use and transactions. 

 

In some instances, additional or different terms, posted on the Service, apply to your use of certain parts of the Service (individually and collectively the “Additional Terms”).  To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.  References to “Terms” herein shall include reference to any applicable Additional Terms.

 

3.     LICENSE

Subject to your compliance with the Terms, you may, as applicable, (a) download the App and access and use the Website in connection with your use of the Service, and (b) display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device, in each case solely for your own personal and non-commercial use.  You may not: (i) copy, modify or distribute the Service or Content for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Service or Content to anyone else; (iii) reverse-engineer, decompile or create derivative works of the Service or Content; (iv) access or use the Service or Content for purposes of competitive analysis of the Service or Content, the development, provision, or use of a competing service or product or any other purpose that is to our commercial disadvantage; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise cause harm to the Service, us, other users of the Service, or a third party; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device, or other content protection or access control measure) of the Service or any feature that restricts or enforces limitations on use of or access to the Service; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems, or networks connected to the Service, through password mining or any other means; (ix) make the functionality of the Service available to multiple users through any means; (x) use multiple accounts per individual user per device; or (xi) use the Service or Content in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms and/or applicable laws.  Furthermore, you agree that you will NOT use the Service to:

 

a.     upload, download, post, email, transmit, store or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortuous, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, violate the right of any third party, or otherwise objectionable;

b.     frame or utilize framing techniques to enclose any Content (including any images, text, or page layout);

c.      make any modifications to the Content (other than to the extent of your specifically permitted use of the Service, if applicable);

d.     upload or transmit any computer viruses, Trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer;

e.     insert any code or product to manipulate Content in a way that adversely affects any user experience to the Service;

f.      use Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands;

g.     stalk, harass, threaten or harm another;

h.     request personal or other information from anyone, including other users of the Service;

i.       pretend to be anyone, or any entity, you are not, you may not impersonate or misrepresent yourself as another person, entity, another user, or otherwise misrepresent your affiliation with a person or entity; or

j.       plan or engage in any illegal activity and/or gather and store personal information on any other users to be used in connection with any of the foregoing prohibited activities.

 

Other than set forth explicitly in this Section 3, no other licenses or rights are granted to you by implication or otherwise, including in or to any intellectual property rights owned or controlled by us or our licensors.

 

4.     ELIGIBILITY TO USE THE SERVICE; ACCOUNT CREATION

The Service is available in participating Circle K USA locations only. The Terms are binding for both parties when you place an order with us by charging your electric vehicle at a Circle K charging station (each an “Order”).

 

In order to access certain features of the Service, you have to “register” (create an “account”). To use the Service and create an account, you must be of legal driving age in your state of residence.  If you are less than 18 years of age, you may create an account only under the supervision of a parent or legal guardian who has read, understood and agreed, on your behalf and on his/her own behalf, to be bound by these Terms.  If you create an account, you will be asked to provide your name, email address, mobile phone number, password, billing address and payment information.  Upon creation of your account, you will receive an email and/or an SMS with a link to validate your identity.  You represent and warrant that any registration information that you submit to the Company is true, accurate and complete, and you agree to keep it that way at all times.  You will also have to accept these Terms and our Privacy Policy.

 

You agree not to disclose your password to anyone else and that you will be solely responsible for any activities or actions taken under your account, whether or not authorized by you.  Please notify us immediately of any unauthorized use of your password or account.  We are not liable for any loss or damage from your failure to comply with these requirements.  By creating an account, you consent to the use of: (i) electronic means to complete the Terms and to provide you with any notices given pursuant to the Terms; and (ii) electronic records to store information related to the Terms or your use of the Service.

 

You may delete your account at any time by telephone at 833-505-2291.

 

5.     PAYMENT

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for all charges you incur for the purchase of any Order. You are responsible for, and agree to pay, all such charges.  If we or our third party payment processor cannot obtain authorization for charges to your payment method or if any amounts you authorize us to charge to your payment method are reversed or charged back for any reason, we may, at our option, in addition to any other remedies: (a) cancel or suspend any undelivered portion of your Order, (b) make second and/or subsequent attempts to charge your payment method, and/or (c) use any other lawful means to collect payment on any outstanding amounts due to us.  You will remain responsible for paying all applicable charges for all Orders. You agree to provide and keep current a valid payment method.  However, your failure to do so shall not constitute cancellation of any Order. In the event you want to change or update payment information associated with your Order, you can do so at any time by logging into your account and editing your payment information.

 

Circle K may, upon placement of an Order, reserve an amount to secure payment of the Order amount. The relevant card will be charged with the actual Order amount the same day as the product is delivered. Any amount reserved will be released when payment has been made.

 

All prices shown for products and services available through the Service and related charges are in United States dollars, unless indicated otherwise. The current price for the charging will be available in the App and on the Website.  Prices are quoted per kilowatt hour and do not include applicable taxes and fees.  Different payment plans may be offered.  The total cost payable is calculated when the charging is complete.

 

Charging is exempted from right of withdrawal due to the non-reversible nature of the delivery of the product. You acknowledge that there is no right of withdrawal once Circle K has fulfilled its obligations. In case of defects in the purchased goods, you may within reasonable time after you discovered, or should have discovered, the defect notify Circle K in writing that a claim will be made.  If there in fact was a defect in the goods and this was not caused by you or otherwise considered your risk, you may according to applicable law have the right to withhold payment, demand fulfilment of the contract, terminate the agreement and/or claim compensation from Circle K.

 

6.     CHANGES TO THE SERVICE AND PRODUCTS OFFERED

We reserve the right, at our sole discretion, to the extent not prohibited by applicable law, (a) to modify or suspend at any time the Service or any part thereof either generally or with respect to a specific user (e.g., by refusing access to the Service), (b) to modify or withdraw services or products offered on or through the Service, or otherwise terminate the provision of the Service, in each case without notice to you (except to the extent such notice is required under applicable law), without incurring any liability to you or anyone else for any loss or damages that may result, directly or indirectly. To the extent required by applicable law, and without limiting the generality of Section 2 above, we will notify you of modifications to the Service on the App or the Website and/or send a written notice to you, including any changes to the Terms, and your continued use of the Service constitutes your acceptance of such updated Terms.

 

To the extent not prohibited by applicable law, and without limiting the generality of Section 2 above, we reserve the right to modify the terms and conditions of the Service, including: conditions of eligibility; conditions applicable to product purchases and transactions; and make any other modifications required under legislation or regulations.

 

7.     MOBILE, MESSAGING, AND LOCATION-BASED FEATURES

 

A.             MOBILE FEATURES 

The Service may offer certain features and services via your mobile device.  Features and services may include the ability to access the Service’s features, upload content to the Service, receive messages from the Service, and download applications to your mobile device (collectively, “Mobile Features”).  You agree to receive communications we may send through Mobile Features for which you are registered.  Further, we may collect information related to your use of the Mobile Features.  If you have registered via the Service for Mobile Features, then you agree to notify Company of any changes to your mobile contact information (including phone number) and update your accounts on the Service to reflect the changes.  If the Service includes push notifications or other mobile communication capability, you hereby approve our delivery of electronic communications directly to your mobile device.  These notifications, including badge, alert or pop-up messages, may be delivered to your device even when the Service is running in the background.  You may have the ability, and it is your responsibility, to adjust the notifications you do, or do not, receive via your device through your device and/or App settings.  Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible.  Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.

 

B.              TEXT MESSAGES AND EMAILS

                    i.         Text Messages.  You may be given opportunities to subscribe to various text marketing or other text messaging programs and by doing so, you consent to receive ongoing text alerts (including by auto-dialers) from us related to our various businesses and affiliates, which may include co-promotions with or about other parties, except that if the scope of your consent for a particular subscription is limited that subscription will be so limited.  See our Text Terms for more details. 

 

                   ii.         Email Messages.  You may cancel or modify our email marketing communications you receive from us by following the instructions contained within our promotional emails.  This will not affect subsequent subscriptions and if your opt-out is limited to certain types of emails the opt-out will be so limited.  Please note that we reserve the right to send you certain communications relating to your account or use of our Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.

 

C.              LOCATION-BASED FEATURES

If GPS, geo-location or other location-based features are enabled on your device, you acknowledge that your device location may be tracked and may be shared with others consistent with our Privacy Policy.  Some devices and platforms may allow disabling some, but not all, location-based features or managing such preferences. Typically, your proximity or connection to wi-fi, Bluetooth and other networks may still be tracked when location services are turned off on device settings. You can terminate device location tracking via a mobile app by us by uninstalling the application.  Territory geo-filtering maybe required in connection with use of some Service features due, for instance, to Content territory restrictions.  The location-based services offered in connection with Company’s mobile app(s) or feature(s) are for individual use only and should not be used or relied on in any situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or physical or property damage.  Use location-based services at your own risk as location data may not be accurate. The App and/or Website may also provide access to Google Inc. (“Google”)’s Maps program.  By using or accessing such program, you agree to be bound by any of Google’s applicable terms of use or service.

 

8.     LINKS TO OTHER WEBSITES

We are not responsible for third parties or their content, advertisement(s), apps or sites (“Third-Party Services”). The App and/or the Website may contain hyperlinks enabling users to visit external websites, owned and operated by third parties.  These hyperlinks are provided to you as a convenience only. In addition, portions of the Service may be integrated into or linked to third-party sites, platforms and apps that we do not control.  Similarly, we may make third-party ads and other Third-party Services, which we also may not control, available to you on or via our Service.  This may include the ability to register or sign in to our Services using Facebook Connect or other third-party tools, and to post content on Third-party Services using their plug-ins made available on our Services.  The Company has no control over these external websites and does not guarantee their content.  You assume full responsibility for your use of Third-Party Services and fully release the Company from all liability.  Under no circumstances the inclusion, on the App and/or Website, of a hyperlink, content, or other feature to or provided by to a Third-Party Service shall be interpreted or construed as an endorsement, by the Company, of any representation or information contained on any such website or as a partnership or affiliation with the owner of any such website.  Your use of the third-party websites is subject to the terms and conditions of these websites.  Furthermore, you may not create links from other websites to the App and/or Website, except if expressly permitted by the Company.

 

If you are accessing or using the App through Apple, Android, or any other platform, these are Third-Party Services.  If you access our Apps via Apple, see below for Additional Terms and conditions that are applicable to you and that are incorporated into the Terms by reference.

 

9.     TERMS APPLICABLE FOR APPLE IOS.

           i.       To the extent that you are accessing the Service through an Apple mobile application, you acknowledge that these Terms are entered into between you and the Company and that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.

          ii.       The license granted to you by the Company under the Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Use (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Service.

         iii.       You acknowledge that the Company, and not Apple, is responsible for providing the Service and Content thereof.

         iv.       You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.

          v.       To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.

         vi.       Notwithstanding anything to the contrary herein, and subject to the terms and conditions of the Terms, you acknowledge that, solely as between Apple and the Company, the Company, and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. 

       vii.       Further, you agree that if the Service, or your possession and use of the Service, infringes on a third-party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.

      viii.       You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.

         ix.       When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.

          x.       Your use of real time route guidance on the Service (if any) is at your sole risk.  Location data may not be accurate.

 

10.  EXCLUSION AND DISCLAIMER OF WARRANTIES

THE COMPANY, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS MAKE NO REPRESENTATION OR WARRANTY REGARDING THE FUNCTIONALITY, THE GOOD WORKING ORDER OR CONDITION OF THE SERVICE, ITS SUITABILITY FOR USE, OR THAT ITS USE, OR ANY INFORMATION OR MATERIAL, INCLUDING ANY DOWNLOADABLE SOFTWARE, ACCESSED FROM OR THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  THE COMPANY DOES NOT REPRESENT, WARRANT OR UNDERTAKE THAT ANY ERRORS ON OR RELATING TO THE SERVICE WILL BE CORRECTED, OR THAT ANY SERVER FROM WHICH THE SERVICE IS OPERATED IS OR WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHERMORE, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY PRODUCT AND/OR SERVICES AVAILABLE ON OR PROMOTED THROUGH THIS SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATION, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES AVAILABLE ON OR PROMOTED THROUGH THIS SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY THE SERVICE, INCLUDING THE APP, THE WEBSITE, THE CONTENT, AND ANY PRODUCTS AND/OR SERVICES AVAILABLE ON OR PROMOTED THROUGH THE SERVICE (THE “COMPANY OFFERINGS”).

 

EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS, THE COMPANY OFFERINGS  ARE PROVIDED TO YOU ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND THE COMPANY DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION (i) WARRANTIES AS TO UNINTERRUPTED OR ERROR-FREE BROWSING, PRIVACY, OR SECURITY, (ii) ACCURACY, ADEQUACY OR COMPLETENESS OF THE COMPANY OFFERINGS MADE ACCESSIBLE BY THE SOFTWARE USED ON OR ACCESSED THROUGH THE SERVICE OR OTHERWISE, ANY HYPERTEXT LINKS TO THIRD PARTIES OR OTHER THIRD-PARTY SERVICES, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SERVICE OR ANY LINKED SITE; OR (iii) MERCHANTABILITY, QUALITY, TITLE, DURABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE.  THESE EXCLUSIONS ARE IN ADDITION TO ANY SPECIFIC EXCLUSION OTHERWISE PROVIDED IN THESE TERMS.

 

BECAUSE CERTAIN FEDERAL OR STATE LAWS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.

 

11.  USE OF INFORMATION AND ERRORS

The Content displayed on the Service is provided for informational purposes only, unless otherwise stated.  Price errors or product/service description errors or inaccuracies, including color, origin, category or other characteristics may occur.  The Company reserves the right (i) to correct any such errors, at its sole discretion, at any time and without prior notice, and (ii) to refuse, cancel or correct any order containing such price or description errors or inaccuracies.

 

12.  INDEMNIFICATION

By using the Service you hereby agree to indemnify, defend and hold harmless the Company, its affiliates, and its and their directors, officers, owners, employees, agents, mandataries, contractors, licensors, licensees, and third-party suppliers (“Company Parties”) from and against any and all losses, damages, liabilities, and claims and all fees, costs, expenses, of any kind related thereto (including, without limitation, reasonable attorneys’ fees) incurred by the Company Parties in connection with any claim arising out of, based upon or resulting from your use of the Service.  The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not, in any event, settle any matter without the written consent of the Company.

 

13.  LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO, ANY LOST DATA, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF USE OR LACK OF AVAILABILITY OF FACILITIES INCLUDING COMPUTER RESOURCES, ROUTERS AND STORED DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF COMPANY OFFERINGS, EVEN IF THE COMPANY OR ANY OF ITS LAWFUL AGENTS, CONTRACTORS, EMPLOYEES OR MANDATARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.

 

IN PARTICULAR, AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR DAMAGES OR LOSSES RESULTING FROM VIRUSES, DATA CORRUPTION, FAILED MESSAGES, DAMAGES ARISING AS A RESULT OF TRANSMISSION ERRORS OR PROBLEMS, TELECOMMUNICATIONS SERVICE PROVIDERS, THE COMPANY’S CONTRACTORS OR SERVICE PROVIDERS, THE INTERNET BACKBONE, THIRD-PARTY SUPPLIERS OF PRODUCTS OR SERVICES, DAMAGES OR LOSSES CAUSED BY YOU, OR YOUR RESPECTIVE EMPLOYEES, AGENTS, MANDATARIES OR SUBCONTRACTORS, DAMAGES OR LOSSES RESULTING FROM PRODUCT/SERVICE PRICE OR ATTRIBUTABLE ERRORS, PRODUCT ERRORS, SUBSTITUTIONS, MISSING PRODUCTS, INACCURATE PRODUCT-SERVICE DESCRIPTIONS OR OTHER EVENTS BEYOND THE REASONABLE CONTROL OF THE COMPANY.

 

IF, DESPITE THE LIMITATIONS ABOVE, THE COMPANY IS FOUND LIABLE FOR ANY DAMAGE OR LOSS IN CONNECTION WITH THE SERVICE, IN NO CASE WILL THE COMPANY’S TOTAL LIABILITY ARISING UNDER ANY CAUSE WHATSOEVER (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE OR OTHERWISE) BE FOR MORE THAN, IN THE AGGREGATE, USD 10.00$.

 

IF YOU ARE DISSATISFIED WITH THESE TERMS OR THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING AND ACCESSING THE SERVICE AND/OR TO ASK, IN PERSON AT THE DESIGNATED STORE, FOR A REFUND OR EXCHANGE OF THE PRODUCTS IN QUESTION DEPENDING ON THE DESIGNATED STORE’S REFUND AND EXCHANGE POLICY.

 

CERTAIN FEDERAL OR STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

14.  INTELLECTUAL PROPERTY RIGHTS

Content on the Service, including but not limited to texts, images, illustrations, articles, photographs, software, audio clips and video clips, is owned or otherwise provided by the Company, and the Company does not represent or warrant that such material does not infringe the rights of any other person or entity.  The material on the Service is protected by the Trademarks Act and all applicable laws of other countries and international treaties.  Any unauthorized use of the Content, including any reproduction, distribution or redistribution, transmission or retransmission, communication to the public by telecommunication, performance, translation, distribution to the public or downloading is prohibited without the prior written authorization of the Company.  Except as set forth in Additional Terms, you may, however, make a single copy of Content published on the Service for personal, non-commercial, use as long as the Company is identified as the source.  The trademarks displayed on the Service are trademarks, registered or unregistered, of the Company, its affiliates or third parties, which are the property of their respective owners.  The trademarks displayed on the Service cannot be used without the prior written authorization of the Company or their respective owners.  No element of the Service shall be interpreted as creating, implicitly or expressly, a license or a right of use or of duplication of a trademark, except with the express written consent of the Company or the owner of such trademark.

 

15.  YOUR MATERIAL

The Company is not responsible for any text, image, video, audio, or any information, content or other materials you may introduce into or post through the Site or any other Company websites including any Company pages on social networking websites and webpages such as Facebook, Twitter, Instagram or YouTube (collectively, your “Material”).  You acknowledge and agree that your Material does not necessarily reflect the views, ideas or opinions of the Company or any of its divisions, affiliates, subsidiaries, directors, officers, employees, agents, contractors and suppliers and that we disclaim any and all responsibility for any of your Material.  You agree never to knowingly or otherwise introduce or post Material that is defamatory, libelous, slanderous, obscene, abusive, fraudulent, or that violates any other party’s proprietary rights, promotes hatred, otherwise gives rise to a criminal offence or civil liability on the part of any person or entity or that is otherwise unlawful or in contravention of applicable laws and regulations.  You hereby agree to defend and hold the Company harmless against all claims, damages, liability, losses or expenses resulting from or related to your Material.  The Company reserves the right to edit, alter or delete any Material at any time without prior notice.  All Material must be solely for non-commercial, personal purposes and may be protected by applicable copyright laws.

 

Other than your account information and your information needed to process orders, the Company does not wish to receive Material from you that is confidential, secret or proprietary information. 

 

You acknowledge and agree that any Material which you provide including, but not limited to, your ideas, suggestions, comments and other feedback regarding your use of the Site, is not, except as may be required under applicable law or pursuant to the Company’s Privacy Policy, confidential, secret or proprietary. 

 

You hereby acknowledge and agree that any and all information and Material provided by you to the Site may be included in a database owned by the Company in which we have rights and interests, including but not limited to, the compilation copyright, and we reserve the right to use any information or materials you provide to us or that we obtain through your use of the Site to the fullest extent permitted by law. You, therefore, consent to the Company using any such information or material provided, in whole or in part by any means or in any manner whatsoever, including reproducing, retransmitting or publishing this information or material or ideas, concepts or other information contained therein for the commercial purposes of the Company or the disclosure of your identity, in accordance with these Terms and the Company’s Privacy Policy.

 

For greater certainty, and without limitation to the generality of the foregoing, by posting messages, uploading files, inputting data or engaging in any other form of communication to or within the Site, you hereby grant the Company a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use (including use for promotional and advertising purposes), copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit the content of your communications and any ideas or original materials contained therein, in all media now known or hereafter developed. This grant shall include the right to exploit any and all proprietary rights in and to any such communications including, without limitation, any and all rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. You hereby waive all rights you may have to inspect and/or approve of any use by the Company of any material or ideas submitted by you or the right to receive any compensation for such use. You waive all rights to any claim against the Company for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with any of the foregoing. You agree and understand that the Company is under no obligation to use any material or ideas submitted by you in any way whatsoever.

 

Furthermore, you acknowledge that unprotected e-mail communications and other transmissions over the Internet are not confidential and may be subject to possible interception, alteration or loss. You acknowledge and agree that by submitting any such communications to the Company or the Site, no confidential, fiduciary, contractually implied or other relationship is created between you and the Company other than pursuant to these Terms. The Company shall not be responsible for the payment of any monies to any other party in connection with the Company’s use of any information or material provided by you to the Company or the Site. You also represent and warrant that any and all such information or Material which you provide to the Company, whether provided by you electronically by accessing or using the Site or otherwise, and the Company’s use of this information and material so provided as permitted in these Terms, does not infringe the rights of any other person or entity.

 

16.  SURVEILLANCE

The Company may monitor the access to the Site (and any other of its websites) and other activities in relation to the Site (and any other of its websites) and other Company Offerings and may intervene in this regard. However, the Company makes no representation and gives no warranty to that effect. You consent to such surveillance and intervention, if the Company ever decides to do it.

 

17.  SECURITY OF THE SERVICE

You may not use the Service, or other Company Offerings for purposes other than the purposes set out in these Terms.  You are prohibited from making any attempt whatsoever to access any data not intended for you, testing the vulnerability of our systems and solutions, compromising their security or efficiency and effectiveness, and sending unsolicited e-mail, including, without limitation, advertising.  All such actions are against the law and may result in civil or criminal proceedings.

 

18.  GOVERNING LAW AND JURISDICTION

A.         Forum Selection/Jurisdiction.  Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Service, the Content, your Materials, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Phoenix, Arizona. Each party submits to personal jurisdiction and venue in Phoenix, Arizona for any and all purposes.

 

B.         Pre-Arbitration Notification.  The Company and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that the Company need not do so in circumstances where its   claims of Intellectual Property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or the Company – shall send a letter to the other side briefly summarizing the claim and the request for relief. If the Company is making a claim, the letter shall be sent, via email, to the email address listed in your the Company account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 18.B.  If you are making a claim, the letter shall be sent to 1130 W Warner Rd., Tempe, AZ 85284 USA (Attn: General Counsel). If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 18. Either you or the Company, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 18.D) before the expiration of this sixty (60)-day period.

 

C.         Arbitration of Claims.  All actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Phoenix, Arizona, before a single arbitrator. If the matter in dispute is between the Company and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS.  We may have the right to pay the JAMS fees if required for arbitration to be enforceable. If you are a consumer you have the right to an in-person hearing.  The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The parties may engage in the discovery or exchange of non-privileged information relevant to the dispute. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Phoenix, Arizona or, if sought by the Company, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the Maricopa County Superior Court or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.

 

D.         Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY COMPANY PARTY (DEFINED BELOW) (INCLUDING YOUR LICENSED UGC) OR A LICENSOR OF ANY COMPANY PARTY. 

 

E.         Governing Law.  These Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against the Company or by the Company against you pursuant to this Section 18, or otherwise related to the Service, Content, your Materials or other of the Company products or services, will be governed by, construed, and resolved in accordance with, the laws of the State of Arizona, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.  This Section 18 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and the Company agree that we intend that this Section 18 satisfies the “writing” requirement of the Federal Arbitration Act.  This Section 18 can only be amended by mutual agreement.  Either party may seek enforcement of this Section 18 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.

 

F.         Class Action Waiver.  As permitted by applicable law, both you and the Company waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 18 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.

 

G.         Jury Waiver.  AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. 

 

H.         Small Claims Matters.  Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 18.F.

 

I.          The provisions of this Section 18 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 18 shall remain in full force and effect notwithstanding any termination of your use of the Service or these Terms.

 

19.  SEVERABILITY; INTERPRETATION

If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction for any reason, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity and enforceability of any of the remainder of these Terms or the applicable Additional Terms. To the extent provided by applicable law, you agree to waive and will waive any applicable statutory and common law principles that may permit a contract to be construed against its drafter.

 

20.  INVESTIGATIONS; COOPERATION WITH LAW ENFORCEMENT

As permitted by applicable law, the Company reserves the right, without limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms; (iii) use any information obtained by the Company in accordance with our Privacy Policy in connection with reviewing law enforcement databases or complying with applicable laws and use and/or disclose any information obtained by the Company to comply with law enforcement requests or legal requirements in accordance with our Privacy Policy; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms and any applicable Additional Terms; and (vi) discontinue the Service, in whole or in part, or, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third-party. Any suspension or termination will not affect your obligations to the Company under these Terms and any applicable Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from the Company, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service (including by deleting any downloads). The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including all rights and licenses you grant to the Company in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

 

21.  ASSIGNMENT

The Company may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned to you, and you may not delegate your duties under them, without the prior written consent of an officer of the Company.

 

22.  COMPLETE AGREEMENT; NO WAIVER

These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances, or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or the Company in exercising or enforcing any of the rights, powers, or remedies granted hereunder will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any of term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

 

23.  HEADINGS

The headings used herein are inserted for convenience of reference only and do not affect the construction or interpretation of the Terms herein.

 

24.  NOTICES; QUESTIONS; CUSTOMER SERVICE

You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us.  If you have a question regarding the Service, you may contact the Company by e-mail, phone, or post mail using the contact information provided below. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.

 

25.  CONTACTING US

 

By phone:

833-505-2291

 

By post mail:

Circle K Stores Inc.

Attn.:

1130 W Warner Rd.

Tempe, AZ 85284

USA