Filld Terms of UsE

Last Updated: 08/31/2018

Welcome to the FILLD, INC (“Us” or “Our” or “We”) website (“Website”) and mobile device application (“Mobile Application”). These Terms of Use (“Terms”) are a legal contract between You and Us (collectively, “Everyone”) and govern Your use of all the text, data, information, software, graphics, photographs and any other materials made available via our Website or Mobile Application (all of which We refer to as “Materials”) that We and Our affiliates may make available to You, as well as any services We provide to You.
 
READ THESE TERMS CAREFULLY BEFORE BROWSING THE WEBSITE OR USING THE MOBILE APPLICATION. CLICKING ON THE “I AGREE” BUTTON OR CHECKING THE “I AGREE” BOX SIGNIFIES YOUR ASSENT TO THESE TERMS. ALTERNATIVELY, USING THE WEBSITE OR THE MOBILE APPLICATION INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU ARE NOT AUTHORIZED TO USE EITHER OR BOTH THE WEBSITE AND THE MOBILE APPLICATION IF YOU DO NOT ACCEPT THESE TERMS.
 
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

1. Services

We provide on-demand gasoline delivery services (“Services”). You may order Our Services using our Mobile Application. You may cancel orders at any time prior to receiving a notification from us, via Our Mobile Application, that Our delivery vehicle is on its way to Your vehicle (after such point You will be required to pay at a minimum the delivery fee provided to You when You make your order (“Delivery Fee”), even if we are not able to fill Your tank. When We notify You that We are en route, We will also provide You with an appointment window for when Our delivery vehicle will visit. This window is an estimate only – We do not guarantee delivery at any particular time within such window, and We do not guarantee that We will arrive within the estimated time. Once our delivery vehicle arrives onsite, whether within or outside the estimated window, the driver will notify You via Our Mobile Application, and Our driver will wait no more than five minutes for Your vehicle (if not already onsite) or to receive access to the gas tank of Your vehicle. If Your vehicle or access is not available within such five-minute period, Our delivery vehicle will leave, and You will be charged the Delivery Fee specified when you placed your order.

For a fill-up, You must leave open the flap to Your vehicle’s gas tank. We will fill up Your vehicle with 87 octane unleaded gasoline unless You have selected and ordered via the Mobile Application a higher octane level product. Our driver will fuel Your vehicle until the pump shuts off automatically. We will not “top-off” a tank of gas. Following the fill-up, we will email a receipt to you. The exact price per gallon, minimum quantities (if applicable) and any applicable additional fees are given through the Mobile Application at the time the Services are ordered.

Due to reasons such as applicable law, terrain or building features and limitations (e.g., overhead clearance), or the requirements of some private property owners, the Services may not be available in all locations within a service area. We reserve the right to decline to enter into any area to access your vehicle’s gas tank, for any reason. We may, in our sole discretion, choose to waive any cancellation or Delivery Fees in such circumstances; otherwise, you will be responsible for such fees.

YOU AGREE TO ACCESS THE SERVICES AT YOUR OWN RISK. PLEASE CAREFULLY REVIEW THESE TERMS OF SERVICE, INCLUDING THE SECTION ENTITLED “LIMITATION OF LIABILITY,” PRIOR TO ACCESSING THE SERVICES.

2. Payments

You agree to pay all applicable fees related to Your use of this Website, the Mobile Application and Our Services which are described fully on Our services page. We may suspend or terminate Your account and/or access to Our Services and the Website and the Mobile Application if Your payment is late and/or Your offered payment method (e.g., credit card or PayPal account) cannot be processed. By providing a payment method (including Your credit card, email, postal address, or other required information), You expressly authorize Us (or as appropriate our third party payment processor) to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto, all of which depend on Your particular membership and utilized services through Our third-party payment processor. By submitting such payment information, You represent and warrant that you have the legal right to use the payment method You selected to make a purchase through Us.

We understand that You might cancel Your account, but please know that We will not provide any refund(s) and You will be responsible for paying any balance due on the account. To make things less complicated, You agree that We may charge any unpaid fees to Your provided payment method and/or send You a bill for such unpaid fees when You cancel your account.

Within 30 days after a fill-up, You may request via our Mobile Application, and We will provide upon such request, a receipt certifying the amount of gasoline delivered to Your Vehicle.

3. Changes

We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue all or part of the Website or Mobile Application at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any modifications to these Terms by posting them on the Website and to the Mobile Application and, if You have registered with Us, by email that We will send to the address that You provided when registering on the Website or via the Mobile Application. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration.

If You object to any such modifications, Your sole recourse shall be to cease using the Website, the Mobile Application and the Services. Continued use of the Website, the Mobile Application or the Services following notice of any such modifications indicates that You acknowledge and agree to be bound by the modifications.

4. General Use

By using the Website or the Mobile Application, You promise that You are at least 18 years of age. By ordering Services, You represent that You own or have the right to fuel the vehicle you select for fill-up and grant us permission to fill up such vehicle. You may only use the Website and Mobile Application to (i) view our products, services, and offerings, and (ii) to arrange for the refiling of your vehicles for personal use or internal business use (collectively the “Permitted Purposes”). You may not use our Website and Mobile Application to engage in any remarketing or reselling of our Services.

In these Terms we are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in the Website, the Mobile Application or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Website, the Mobile Application or Materials in any manner. You may make copies of any of the Website or the Mobile Application while engaging in Permitted Purposes but only if You make sure to keep on the copies all of Our copyright and other proprietary notices as they appear on the Website and the Mobile Application.

Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed materials (and any copies thereof).

5. Mobile Application

We make available the Mobile Application to access the Services via a mobile device. To use the Mobile Application, You must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with Your mobile device. We hereby grant to You a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased, solely by You, for Your Permitted Purposes. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that We may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You consent to such automatic upgrading on Your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and We and Our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to Your use of the Mobile Application.

The following terms apply to any Mobile Application accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the Mobile Application may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:

  • These Terms are concluded between you and Us, and not with the App Provider, and Us (not the App Provider), is solely responsible for the Mobile Application.
  • The App Provider has no obligation to furnish any maintenance and support services with respect to the Mobile Application.
  • In the event of any failure of the Mobile Application to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the Mobile Application to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Mobile Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Us.
  • The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile Application or your possession and use of the Mobile Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • In the event of any third party claim that the Mobile Application or your possession and use of that Mobile Application infringes that third party’s intellectual property rights, We will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
  • The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the Mobile Application, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Mobile Application against you as a third-party beneficiary thereof.
  • You 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.
  • You must also comply with all applicable third party terms of service when using the Mobile Application.

6. Registration

If You desire to register for an account with Us to use the Services, You must download the Mobile Application on your mobile device. When you open the app, you should agree to let Us gather your location information; if you do not agree, the Services will still function, but not in the intuitive way we have designed.

You must submit the following information through the Mobile Application to be fully registered:

  • Your First and Last name
  • A working email address
  • Your mobile phone number
  • At least one of each of the following:
  • Vehicle Make
  • Vehicle Model
  • Vehicle Year
  • Vehicle Color
  • Vehicle Plate # and State (Vehicle plate/state may be added upon first delivery)
  • Vehicle Preferred Fuel Type
  • Payment method and full verification

You may also provide additional, optional information so that We can provide You a more customized experience when using the Website and the Mobile Application –but, We will leave that decision with You. Once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. If approved, You will be sent an e-mail detailing how to complete Your registration. For so long as You use the account, You agree to provide and maintain true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password – no worries as We will happily send a password update to Your provided email address.

You are responsible for complying with these Terms when You access the Website and the Mobile Application, whether directly or through any account that You may setup through or on the Website or the Mobile Application. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of the Website and the Mobile Application as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access the Website or the Mobile Application. It is Your responsibility to maintain the possession and security of access to your mobile device, as access to your mobile device will allow access to the Mobile Application and Our services. Should You believe Your password or security for the Website or the Mobile Application has been breached in any way, or that Your possession and security of access to your mobile device has been compromised, You must immediately notify Us. You may be responsible for Services ordered on Your account if You do not maintain the confidentiality of Your password.

7. Text Messaging

By registering for an account with Us, You agree that We may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from Us at any time by turning off notifications in the “Manage Notifications” section of the “Settings” menu. You may also opt in or out of marketing and advertising messages the same way. You acknowledge that opting out of receiving non-marketing/advertising text (SMS) messages may impact your use of the Services.

8. Electronic Communications

By using the Website, the Mobile Application and/or the Services, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website, the Mobile Application and/or the Services. These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing.

9. Privacy Policy

We respect the information that You provide to Us, and want to be sure You fully understand exactly how We use that information. By accepting these Terms of Service, You are also agreeing to our collection and use of your information in accordance with Our Privacy Policy (“Privacy Policy”) at https://www.filld.com/privacy.

10. Links to Third-Party Sites

We think links are convenient, and We sometimes provide links to third-party websites. If You use these links, You will leave the Website and the Mobile Application. We are not obligated to review any third-party websites whose links are made available via the Website or the Mobile Application. We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites.

11. Submissions

Certain areas of the Website and the Mobile Application (e.g., blogs, chat rooms or customer ratings and review areas) may permit You to submit feedback, information, data, text, software, messages, or other materials (each, a “User Submission”). You may also make a User Submission via email to us at info@filld.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit Your User Submission(s) for any purpose.

12. Unauthorized Activities

To be clear, We authorize Your use of the Website and the Mobile Application only for Permitted Purposes. Any other use of the Website or the Mobile Application beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Website and the Mobile Application. This is because as between You and Us, all rights in the Website and the Mobile Application remain Our property.

Unauthorized use of the Website or the Mobile Application may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use the Website or the Mobile Application in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

For any public or commercial purpose which includes use of the Website or the Mobile Application on another site or through a networked computer environment;

Access or use the Website, Services, or Mobile Application for any reason other than a Permitted Purpose;

In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Website or the Mobile Application;

In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;

Stalk, harass, or harm another individual;

Impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;

To interfere with or disrupt the Website or the Mobile Application or servers or networks connected to the Website or the Mobile Application;

Attempt to decipher, decompile, disassemble or reverse engineer the Mobile Application or any other software provided to You under these Terms;

Violate any applicable law or regulation;

Use any data mining, robots, or similar data gathering or extraction methods in connection with the Website or the Mobile Application; or

Attempt to gain unauthorized access to any portion of the Website or the Mobile Application or any other accounts, computer systems, or networks connected to the Website or the Mobile Application, whether through hacking, password mining, or any other means.

13. Indemnity

You will indemnify and hold Us and Our officers, directors, employees and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Mobile Application or your violation of these Terms. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim.

14. Proprietary Rights

“FILLD,” and “AutoFuel” are trademarks that belongs to Us. Other trademarks, names and logos on the Website and the Mobile Application are the property of their respective owners.

15. Disclaimer of Warranties

TO THE EXTENT PERMITTED BY LAW, THE WEBSITE, THE MOBILE APPLICATION AND THE SERVICE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEBSITE, THE MOBILE APPLICATION AND THE SERVICE IS WITH YOU.

WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE WEBSITE, THE MOBILE APPLICATION AND THE SERVICE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE, THE MOBILE APPLICATION AND THE SERVICE ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that the Website, the Mobile Application or the Services will meet Your requirements or that the Website, the Mobile Application or the Services will be uninterrupted, timely, secure, or error free or that defects in the Website, the Mobile Application or the Services will be corrected. We make no warranty as to the results that may be obtained from the use of the Website, the Mobile Application or the Services or as to the accuracy or reliability of any information obtained through the Website or the Mobile Application. No advice or information, whether oral or written, obtained by You through the Website or the Mobile Application or from Us or Our subsidiaries/other affiliated companies shall create any warranty.

16. Limitation of Liability

WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE WEBSITE OR THE MOBILE APPLICATION. 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 AGREE THAT YOU 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.

THE GASOLINE USED TO FILL YOUR GAS TANK.

ANY DAMAGE TO YOUR VEHICLE OR OTHER REAL OR TANGIBLE PERSONAL PROPERTY, WHETHER OWNED BY YOU OR BY A THIRD PARTY — BY AGREEING TO THESE TERMS OF USE AND GRANTING ACCESS TO YOUR VEHICLE GAS TANK AND THE PROPERTY ON WHICH YOUR VEHICLE IS LOCATED, YOU ASSUME ALL LIABILITY FOR ANY DAMAGES ARISING FROM OUR ACCESS TO YOUR VEHICLE.

IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, REGARDLESS OF WHETHER SOUNDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN SERVICE FEES (WHICH DOES NOT INCLUDE FEES ALLOCATED TO THE PRICE OF GASOLINE) DURING THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

YOU AGREE THAT ANY INSURANCE UNDER WHICH YOU ARE INSURED, WHICH MAY BE AVAILABLE TO ADDRESS ANY DAMAGES ARISING OUT OF, OR RELATING TO, ANY OF THE PRECEDING LISTED EVENTS, SHALL BE THE PRIMARY SOURCE OF INSURANCE TO ADDRESS ANY SUCH DAMAGES. YOU AGREE THAT ANY INSURANCE UNDER WHICH WE ARE INSURED SHALL NOT BE THE PRIMARY SOURCE OF INSURANCE TO ADDRESS ANY DAMAGES, AND MAY ONLY BE ACCESSED AT OUR SOLE DISCRETION AND ELECTION, OR NOT AT ALL.

17. Local Laws; Export Control

We control and operate the Website and the Mobile Application from Our headquarters in the United States of America and the entirety of the Website and the Mobile Application may not be appropriate or available for use in other locations. If You use the Website or the Mobile Application outside the United States of American, You are solely responsible for following applicable local laws.

18. Dispute Resolution and Arbitration

  1. Mandatory Arbitration of Disputes. Everyone agrees 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, Website or Mobile (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. Everyone agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and We are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
  2. Exceptions and Opt-out. As limited exceptions to subsection (a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at legal@filld.com within thirty (30) days following the date you first agree to these Terms.
  3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
  4. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
  5. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
  6. Class Action Waiver. YOU AND WE 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, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
  7. Effect of Changes on Arbitration. Notwithstanding the provisions of Section 3 “Changes” above, if We change any of the terms of this Section 19 “Dispute Resolution and Arbitration” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to legal@filld.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Us in accordance with the terms of this Section 19 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
  8. Severability.  With the exception of any of the provisions in Subsection (e) above (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

19. General

We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We may tell You. We may even provide You with recommended necessary corrective action(s) because We value the relationship We have with You.

However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to the Website, the Mobile Application and the Services without prior notice to You. The Federal Arbitration Act, federal arbitration law, and the laws of the state of California, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms, or the Website, the Mobile Application or the Services, will be heard in the courts located in Santa Clara County, CA and You explicitly waive your rights to object to jurisdiction and venue in such courts. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about the Website, the Mobile Application and the Services. The following sections shall survive termination of this agreement:

If any clause within these Terms (other than the arbitration Provision) is found to be illegal or unenforceable, that clause will be severed from these Terms whose remainder will be given full force and effect.

20. California Consumer Notice

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website, the Mobile Application and Service are provided by FILLD, INC, 2362 Old Middlefield Way, Unit C, Mountain View, CA 94043. If You have a question or complaint regarding the Website, the Mobile Application or Service, please contact Customer Service at info@filld.com. You may also contact Us by writing FILLD, INC 2362 Old Middlefield Way, Unit C, Mountain View CA 94043. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

21. Contact Us

If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at:

FILLD, INC
2362 Old Middlefield Way, Unit C
Mountain View, CA 94043
info@filld.com

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