Terms and Conditions

MOREGALLONS ACCOUNT AGREEMENT

This MoreGallons Accounts Agreement (“Agreement”) effective the day of your acceptance via the MoreGallons.com web site is by and between you (“Client”) and MyGallons Services, LLC d/b/a MoreGallons with its principal office at 1111 Lincoln Road 4th Floor Miami Beach, FL 33139 (“MG”) for the procurement of Services (as defined in Section 1A below) from MG in accordance with this Agreement. All references herein to “Client” shall refer to Client and its affiliates, if any, that are receiving the Services pursuant hereto. For purposes of this Agreement “affiliate” shall mean with respect to any individual, corporation or partnership or any other entity or organization (a “person”), any person that directly or indirectly controls, is controlled by or is under common control with such person in question. For purposes of this definition, “control” as used with respect to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through ownership of voting securities or by contract or otherwise.

1. GENERAL TERMS

  1. Services. MG shall provide fuel pre-purchasing and redemption services (the “Services”) as further detailed in the description of services found in Schedule A hereto.
  2. Use of MG Services. Client shall use the Services only for its internal business purposes. Without the express written consent of MG, Client shall not provide, directly or indirectly, any of the Services or any portion thereof to any party other than the Client, including, without limitation, the personal use of any of Client’s employees. Client shall be responsible for ensuring that its employees and any other persons authorized by Client to access or use the Services comply with all the terms of this Agreement.
  3. Online Access. Certain Services may be accessed by Client and its authorized employees through the Internet at a website provided by MG or on behalf of MG (a “Site”). Client agrees to take commercially reasonable precautions to maintain the privacy of usernames and passwords for any Services provided through the Internet. In addition, Client acknowledges that security of transmissions over the Internet cannot be guaranteed. MG is not responsible for (i) Client’s access to the Internet, (ii) interception or interruptions of communications through the Internet, or (iii) changes or losses of data through the Internet. In order to protect the integrity of MG’s business or systems, or Client’s account, MG may suspend Client’s or Client’s employee(s) use of the Services via the Internet immediately, without prior notice, pending an investigation, if any breach of security is suspected. The Site(s) may contain links to other Internet sites. Links to and from a Site to other third party sites do not constitute an endorsement by MG or any of its affiliates of such third party sites or the acceptance of responsibility for the content on such sites.

2. FEES, TAXES & PAYMENTS

  1. Fees. Following the expiration of any applicable promotion or trial period, Client shall pay to MG a non-refundable annual membership fee in the amount of $79.00. This annual fee may be debited from the Client’s gallon balance or paid via ACH, e-check, credit card, or other payment method accepted by MG. In addition, MG will charge a $0.06 per gallon fee at the time of any fuel pre-purchase and a $0.06 per gallon fee when you cash in your fuel. MG may increase prices for the Services at any time upon at least 30 days prior written notice. Client shall reimburse MG for any expenses incurred, including interest and attorney fees, in collecting amounts due MG hereunder that are not under good faith dispute by Client. Disputes regarding charges or billings hereunder must be communicated in writing to MG by email at (JavaScript must be enabled to view this email address) or sent to MG’s address above. Communications should include Client’s name and account number(s), the dollar amount of any dispute or suspected error and a description of the dispute or error. Any communication regarding a dispute or suspected error must be received in written form by MG within sixty (60) days after the invoice date on which the disputed charge first appeared. Returned checks or electronic debits that can not be processed will incur a $25 charge or the maximum allowed by law, whichever is lower. In MG's sole discretion, this charge may be a cash charge billed to your account or a debit to your account in gallons based on the MG Price at the time the check is returned or the electronic debit can not be processed.
  2. Taxes. There shall be added to all payments hereunder amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on MG’s net income. Client shall be responsible for payment of all taxes and duties relating to this Agreement, including, without limitation, all sales, use, transfer, privilege, and excise taxes and duties, whether national, international, state, or local, however designated.

3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS OF CLIENT

Client hereby represents and warrants that: (a) The financial information and all other information provided to MG is complete, accurate, and truthful; (b) This Agreement is valid, binding and enforceable against Client; (c) The execution of this Agreement and the performance of its obligations are within Client’s power, have been authorized by all necessary action and do not constitute a breach of any agreement of Client with any party; (d) It has and continues to comply with all applicable state and federal statutes, ordinances, rules, regulations and requirements of governmental authorities as they relate to the use of the Services; (e) The execution of this Agreement and the performance of its obligations under this Agreement will not cause a breach by it of any duty arising in law or equity; (f) It possesses the financial capacity to perform all of its obligations under this Agreement; (g) It is not using the Services for any investment or speculative purposes; (h) It will not submit a redemption form unless, since the last time it submitted a redemption form, it has actually purchased at least as many gallons at the pump as it is redeeming at the time (This representation will be repeated each time Client submits a redemption form.). MG reserves the right to require Client to submit, and Client hereby agrees to submit to MG upon request, receipts of fuel purchases, credit card statements, fuel fleet card statements or other documentation as evidence of its compliance with this section.

Client acknowledges and agrees that (i) MG is not acting as an investment advisor, commodities trading advisor, insurance agent or intermediary or a financial planner, (ii) MG is not providing Client with any advice regarding the timing or price of fuel pre-purchases, and (iii) MG will not enter into any transaction for the purpose of hedging fuel prices on Client’s behalf and will NOT take steps to protect Client from falling fuel prices.

4. DISCLAIMER OF WARRANTIES

THE SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IN CONNECTION WITH THE SERVICES ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MG DISCLAIMS ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES, AS WELL AS ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. MG SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF OR PROVIDE THE SERVICES. MG FURTHER DISCLAIMS ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES WILL MEET CLIENT’S NEEDS. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to Client insofar as they relate to implied warranties.

5. LIMITATION OF LIABILITY; INDEMNIFICATION

MG SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF MG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL MG BE LIABLE TO CLIENT FOR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY CLIENT FOR THE SERVICES THAT ARE THE SUBJECT OF COMPLAINT OR ANY TERMINATION. THESE LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SERVICES, FROM RELIANCE ON MG OR THE SERVICES, FROM INABILITY TO USE THE SERVICES, FROM LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. MG SHALL NOT BE LIABLE OR RESPONSIBLE TO CLIENT OR ANYONE CLAIMING THROUGH CLIENT, UNDER ANY CIRMCUMSTANCES OR LEGAL THEORIES FOR PROBLEMS ARISING OR CAUSED DIRECTLY OR INDIRECTLY BY OR FROM THIRD PARTIES, SUCH AS BUT NOT LIMITED TO, FUEL STATIONS, PAYMENT NETWORKS OR ANY OTHER THIRD PARTY PROVIDER, WHICH WOULD LIMIT, DIMINISH, DELAY OR ALTER THE SERVICES TO CLIENT OR CAUSE CLIENT ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES. Except to the extent that any injury is solely due to MG’s grossly negligent acts or omissions, Client shall indemnify and hold MG harmless against all losses, damages, costs, expenses and liability which may result in any way from any negligent or wrongful act or omission of Client, participants, its agents, employees and subcontractors. Client shall indemnify and hold MG harmless against demands, claims, suits, or proceedings alleging infringement of any patent of the United States, or any trademark, service mark, copyright or other proprietary right arising out of or incident to this Agreement.

6. NONDISCLOSURE

All Confidential Information disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (a) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, (b) as appropriate and with prior notice where practicable, to respond to any summons or subpoena or in connection with any litigation, and (c) to the extent necessary or appropriate in the course of providing the Services. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession. Notwithstanding the foregoing, MG may retain information for regulatory purposes or in back-up files, provided that MG’s confidentiality obligations hereunder continue to apply. For purposes of this Section, “Confidential Information” shall mean: all information of a confidential or proprietary nature provided by the disclosing party to the receiving party for use in connection with the Services, but does not include (i) information that is already known by the receiving party, (ii) information that becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, and (iii) information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis.

7. TERM AND TERMINATION; DEFAULT BY CLIENT; REMEDIES UPON DEFAULT

  1. This Agreement shall remain in full force and effect for an initial term of one year from the Effective Date of this Agreement, and shall continue thereafter until terminated by either party upon thirty (30) days prior written notice to the other party. The effective date of termination shall be stated in such written notice of termination. The Term of this Agreement shall be automatically renewed for additional one-year period(s) unless Client terminates this Agreement no later than 30 days prior to the expiration of the then-current Term. The monthly fees for any additional Term are non-refundable and are subject to change in MG’s sole discretion. Notice of such change will be provided to Client by MG within a reasonable time prior to the expiration of the then-current Term. All Accounts shall be deemed canceled effective upon termination of this Agreement.
  2. Notwithstanding the foregoing, MG shall have the right to terminate this Agreement immediately, by written notice of such termination to Client, upon any one or more of the following events: (i) dissolution or liquidation of Client; (ii) insolvency of Client or the filing of a bankruptcy or insolvency proceeding, the appointment of a receiver or trustee for benefit of creditors or Client enters into an arrangement with its creditors; (iii) any material and adverse change in the financial condition of Client; (iv) Client’s breach of any representation or warranty contained in Section 3 of this Agreement; or (v) Client’s failure to perform a material obligation of this Agreement.
  3. Upon termination of this Agreement for any reason, Client shall return all confidential information of MG to MG.  Client shall remain liable to MG for all fees and other costs and expenses incurred or arising by virtue of the use of Account prior to the termination date. MG may apply amounts held in any current or future account that Client has or may have with MG or its affiliates to offset any such fees, costs or expenses owed by Client to MG.
  4. Rights, obligations or liabilities that arise prior to the suspension or termination of this Agreement shall survive the suspension or termination of this Agreement.
  5. In the event of any termination under Section 7.A. of this Agreement, Client will receive a credit for the number of unused pre-purchased gallons remaining in its account. The per gallon price of this credit will equal the lower of (i) Client’s average cost per gallon of the remaining gallons in Client’s account (determined by MG using a first in, first out calculation, in which the first gallons Client purchased are sold, used or redeemed first); or (ii) Current MG Price (as available on the MG Site or directly from MG) at the time of termination, less any set-off amount pursuant to the next sentence. The credit may be applied by MG to offset any amounts owed by Client to MG for fees, penalties, damages, or any other reason relating to any current or future account that Client has or may have with MG or its affiliates.

8. MISCELLANEOUS

Inducement. Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes and overrides all prior agreements on the same subject matter, and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto.

Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. MG has no obligation to any third party (including Client’s credit card company or fuel fleet card company) by virtue of this Agreement.

Force Majeure. Any party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of any cause beyond the party’s reasonable control (a “Force Majeure Event”), including, without limitation, Internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, hurricanes, tornados, floods, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss or fluctuations in heat, light, or air conditioning. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. MG will adjust Client’s MG Price to the extent there is any change to the price of fuel resulting from a Force Majeure Event or casualty applicable to Client’s location area or which would affect the MG Price.

Waiver. The failure of MG at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by Client shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by Client.

Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Client and MG shall be construed and enforced accordingly.

Relationship of the Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.

Governing Law. This Agreement is governed by the laws of the Commonwealth of Pennsylvania without giving effect to its conflict of law provisions.

Conflicts Clause. In the event of a conflict between the terms of this Agreement and any additional terms, the terms of this Agreement shall control.

Use of Agents. MG may designate any agent or subcontractor to perform such tasks and functions to complete any services covered under this Agreement. However, nothing in the preceding sentence shall relieve MG from responsibility for performance of its duties under the terms of this Agreement.

Registered Marks. Client has no right, title or interest, proprietary or otherwise, in or to the name or any logo, copyright, service mark or trademark owned or licensed by MG.

Assignment. This Agreement and any and all rights and obligations associated with the same may be assigned by MG without prior notice to Client. All of MG’s rights under this Agreement shall also apply to any assignee of this Agreement. Client may not assign or transfer this Agreement or any rights or obligations hereunder, by merger, of law, or otherwise, without the prior written consent of MG.

Amendment. MG may change the terms of this Agreement at any time by giving Client notice. If permitted by applicable law, such changes will apply to existing Client balances as well as future purchases. If Client does not accept the changes, Client must notify MG in writing within twenty-five (25) days after the date of the notice that Client refuses to accept the changes and elects to terminate this Agreement. Should Client elect to terminate this Agreement pursuant to this Section, Client shall receive any applicable credits pursuant to Section 7.E, subject to any set-off right of MG as described therein. MG reserves the right to modify, rescind, amend or limit the Services from time to time, for any reason, and without notice, including the right to discontinue or terminate any or all of the Services.

NOW THEREFORE, knowing the risks described herein (including the Schedules), and in consideration of MG’s providing the Services and other consideration, the receipt and sufficiency of which is hereby acknowledged, Client hereby, in addition to the releases stated in the above paragraphs, waives, releases, covenants not to sue and forever discharges MG and their members, agents, servants and employees of and from any and all manner of action or actions, causes or causes of action, including, but not limited to negligence, suits, debts, accounts, damages, claims and demands of whatsoever in law, or in equity or otherwise, which Client may acquire by reason of loss of money arising out of, or connected with, this Agreement or the Services.  

CLIENT ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT, AGREES TO BE BOUND BY AND FULLY COMPLY WITH ALL THE TERMS AND CONDITIONS DESCRIBED HEREIN.

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SCHEDULE A

Client at its sole discretion shall elect when to pre-purchase fuel at the MG Price ("MP"), which price will be available on the MG Site or directly from MG. The Client may pre-purchase fuel by logging into its account on the MG Site and completing and submitting a pre-purchase form. Keep in mind the price of fuel, and, consequently, the MG Price, frequently changes.  

After pre-purchasing fuel, Client pays for fuel at the pump using any method of payment, such as a credit card or fuel fleet card. After filling up at the pump, Client may elect to redeem up to 100% of the fuel they actually consumed since its last redemption and subsequent to its pre purchase.  Client may submit a redemption/cash in form relating to any purchase of fuel at any time within 31 days after such purchase. No redemption will be valid if requested more than 31 days after the purchase date.

Upon receipt of a valid redemption/cash in form, MG will pay to Client an amount equal to the MP at the time of receipt of the redemption request multiplied by number of gallons redeemed.

SCHEDULE B

RISK DISCLOSURE STATEMENT
THE FUTURE COST OF FUEL IS UNCERTAIN AND SUBJECT TO CHANGE. CLIENT SHOULD NOT EXPECT THE PRICE OF FUEL TO INCREASE IN COST. FUEL COSTS MAY BE AFFECTED BY SUPPLY, MARKET FACTORS, AND GOVERNMENTAL ACTIONS, AMONG OTHER FACTORS. CLIENT MAY PAY MORE FOR FUEL WHEN IT MAKES FUEL PRE-PURCHASES FROM MG THAN IT WOULD PAY FOR FUEL PURCHASED AT THE PUMP.   CLIENT SHOULD THEREFORE CAREFULLY CONSIDER WHETHER SUCH PURCHASE OF THE SERVICES AND THE PRE-PURCHASE OF FUEL ARE SUITABLE IN LIGHT OF CLIENT’S FINANCIAL CONDITION.