State of California
Version Date: Effective February 4, 2022
Company makes no representation that the Kiosks or the Website or the FuelRod Club Membership are appropriate or available in other locations other than where they are operated by Company. The information provided on the Kiosks and the Website is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Website from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) are not permitted to register for the Website or use the Kiosks or the Company Services.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE PURCHASE PROCESS OR THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE KIOSKS OR THE WEBSITE OR THE FUELROD CLUB MEMBERSHIP. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE KIOSKS OR THE WEBSITE OR THE FUELROD CLUB MEMBERSHIP OR THE COMPANY SERVICES.
TERMS AND CONDITIONS:
You may purchase the Company Services through the Kiosks or the Website. The Company Services include the FuelRod product kit, as well as the right, for a swap fee, to swap the FuelRod battery for a fully charged unit at any FuelRod Kiosk or SwapBox or by contacting Customer Service as set forth in the “Contact Us” section below or via the website or mobile app.
Purchases of Company Services through the Kiosks are paid at the time of purchase. For purchases of Company Services through the Website, Company bills you through an online billing account. You agree to pay Company all charges at the prices then in effect for the Company Services you or other persons using your billing account may purchase, and you authorize Company to charge your chosen payment provider for any such purchases. You agree to make payment using that selected payment method. If you have ordered a Company Service that is subject to recurring charges then you consent to our charging your payment method on a recurring basis, without requiring your prior approval from you for each recurring charge until such time as you cancel the applicable Company Service. Company reserves the right to correct any errors or mistakes in pricing that it makes even if it has already requested or received payment. Sales tax will be added to the sales price of purchases as deemed required by Company. Company may change prices at any time. All payments shall be in U.S. dollars.
WEBSITE PURCHASE: ORDER CONFIRMATION, CANCELLATION & REFUND
Our order confirmation to you does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. At any time after receipt of your order, we may accept, decline, or place quantity or other limits on your order for any reason. We may impose these limits on a per-person, per-household, per-order, or any other basis. If we reject, limit, or otherwise modify your order, we will attempt to notify you using the email address you provide to us. If we cancel an order or part of an order that we've already charged you for, we'll refund you the full amount of the canceled portion of the order.
Shipping Cost - Shipping cost is calculated on a "per order," "per item" or "per pound" basis and is based on the shipping option you select. We sometimes offer free shipping for specific shipping options in select categories, or free shipping sitewide.
Shipping Timing - You can see each product's estimated arrival date on the product page and during the checkout process. During checkout, you can choose an estimated arrival date from the options provided. Confirmed orders typically ship within 48 hours of order placement.
Entering your shipping destination ZIP code or allowing fuel-rod.com to use your current location can result in greater accuracy for your estimated arrival date. Certain products may require additional days to process prior to shipping. This will be reflected in the estimated arrival date. If for some reason you don't receive your product, you may be eligible for a replacement product if you notify us during your return and exchange time period.
Title to Products - Purchases of product through fuel-rod.com are subject to a destination contract. This means that the risk of loss and title for these products passes to you upon the carrier's delivery to your ship-to address.
RETURN & EXCHANGE POLICY
Please review the following terms prior to making any purchases.
Return & Exchange Periods – Fifteen (15) days. If you want to return or exchange your purchase, please know that the time period begins the day you receive the Company Services you want to return or exchange.
Return with Our Prepaid Return Label - Pay nothing up front. Follow the instructions for printing a Prepaid Return Label. Include the packing slip (if you received one) or Return Form in the box with your return. Put the prepaid return label on the package and take it to an authorized UPS drop-off location. The return shipping fee may be deducted from your refund.
Return by Mail via the Carrier of Your Choice - If you received a packing slip, place the Return Form portion of it in the box with your return. If you did not receive a packing slip, you may get a pre-populated Return Form by looking up your order. If you can't locate your order, print a blank Return Form and fill it out. Then, place the completed form in the box with your return. Put the return label on the package, add postage and mail it via the carrier of your choice.
With a few exceptions, we will reimburse you for returned items in the same way you paid for them. If you prefer, you can make an exchange for the same item.
For returns by mail, once we receive your return, we will process it within 2–3 business days. Depending on your bank's processing time, it may take up to 7 days after we process the return to reflect on your account.
If you paid more than $800 in cash or more than $250 by check or by a debit card without a major credit card logo, we will refund you by check within 10 business days.
LIMITED PRODUCT WARRANTY
The Company warrants its product(s) to be free from defects in workmanship and materials, under normal residential use and conditions, for a period of one (1) year for the original purchase date. Shipping and handling fees are to be paid for by the customer. The Company agrees, at its option during the warranty period, to repair and defect in material or workmanship or to furnish a repaired or refurbished product of equal value in exchange without charge (except for a fee for shipping, handling, packing, return postage, and insurance which will be incurred by the customer). Such repair or replacement is subject to verification of the defect or malfunction and proof of purchase as confirmed by showing the model number on original dated sales receipt.
This warranty does not include:
- Any condition resulting from other than ordinary residential wear or any use for which the product was not intended, such as use in rental or contract trade or commercial use
- Any condition resulting from incorrect or inadequate maintenance or care
- Damage resulting from misuse, abuse, negligence, accidents or shipping damage
- Dissatisfaction due to buyer’s remorse
- Normal wear and tear
- Damages incurred during transportation
- Damages incurred during assembly or maintenance
- Any used, previously displayed items
The Company makes no express warranty or condition whether written or oral and the company expressly disclaims all warranties and conditions not stated in this limited warranty. To the extent allowed by the local law of jurisdictions outside the United States, the Company disclaims all implied warranties or conditions, including any implied warranties of merchantability and fitness for a particular purpose. For all transactions occurring in the United States, any implied warranty of condition of merchantability, satisfactory quality, or fitness for a particular purpose is limited to the duration of the express warranty set forth above. Some states or countries do not allow a limitation on how long an implied warranty lasts or the exclusion of limitation of incidental or consequential damages for consumer products. In such sates or countries, some exclusions or limitations of this limited warranty may not apply to the Purchaser. For consumer transaction, the limited warranty terms contained in this statement, except to the extent lawfully permitted, do not exclude, restrict, or modify but are in addition to the mandatory statutory rights applicable to the sale of this Product to the Purchaser.
All warranty claims must be filed by the consumer to the retailer of this product, who in turn is to contact the manufacturer regarding any warranty return or replacement. We will not handle claims from the consumer directly. Please retain invoices for a minimum of one year for warranty purposes.
- Claims for defective merchandise must be made within ONE year from purchase date. Claims for missing parts must be made within 60 calendar days after the merchandise is received
- Any claim for defective merchandise returns must be packed in original packaging
- We reserve the right to specify that items be returned to the original warehouse for inspection or be inspected by our representative in the field
- Pictures are required to claim defective merchandise, along with a copy of the original invoice
- If the claim is justified, the item(s) or part(s) will be repaired or replaced or a credit will be issued. It is our policy to replace parts whenever possible
MEMBERSHIP AND FEES
If you decide to enroll into the FuelRod Club as a member (the “FuelRod Club Membership”), you and the Company further agree to be legally bound by the FuelRod Club Membership Agreement (Exhibit A).
Regarding Your Registration
By using the Company Services, you represent and warrant that:
- all registration information you submit is truthful and accurate;
- you will maintain the accuracy of such information;
- you will keep your password confidential and will be responsible for all use of your password and account;
- you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Kiosks or the Website; and
- your use of the Company Services does not violate any applicable law or regulation.
You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form of the Kiosk or the Website, as well as in connection with the FuelRod Club Membership, and (b) maintain and promptly update registration data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Kiosk or the Website (or any portion thereof).
We reserve the right to remove or reclaim or change a user name you select if we determine appropriate in our discretion, such as when the user name is obscene or otherwise objectionable or when a trademark owner complains about a username that does not closely relate to a user's actual name.
GUIDELINES FOR REVIEWS
Company may accept, reject or remove reviews in its sole discretion. Company has absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Those persons posting reviews should comply with the following criteria: (1) reviewers should have firsthand experience with the person/entity being reviewed; (2) reviews should not contain: offensive language, profanity, or abusive, racist, or hate language; discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation or disability; or references to illegal activity; (3) reviewers should not be affiliated with competitors if posting negative reviews; (4) reviewers should not make any conclusions as to the legality of conduct; and (5) reviewers may not post any false statements or organize a campaign encouraging others to post reviews, whether positive or negative. Reviews are not endorsed by Company, and do not represent the views of Company or of any affiliate or partner of Company. Company does not assume liability for any review or for any claims, liabilities or losses resulting from any review. By posting a review, the reviewer hereby grants to Company a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable and sublicensable license to Company to reproduce, modify, translate, transmit by any means, display, perform and/or distribute all content relating to reviews.
MOBILE APPLICATION LICENSE
If you are accessing the Company Services via a mobile application, then Company grants you a revocable, non-exclusive, non-transferable, limited right to install and use the application on wireless handsets owned and controlled by you, and to access and use the application on such devices strictly in accordance with the terms and conditions of this license. You shall use the application strictly in accordance with the terms of this license and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the application; (c) violate any applicable laws, rules or regulations in connection with your access or use of the application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the application; (e) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (h) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (i) use any proprietary information or interfaces of Company or other intellectual property of Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the application.
Terms Applicable to Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play to access the Company Services. You acknowledge that this Agreement is solely between you and Company only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”). Company, not an App Distributor, is solely responsible for the Company application and the content thereof. (1) SCOPE OF LICENSE: The license granted to you for the Company application is limited to a non-transferable license to use the Company application on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service. (2) MAINTENANCE AND SUPPORT: Company is solely responsible for providing any maintenance and support services with respect to the Company application, as specified in this Agreement, or as required under applicable law. You acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Company application. (3) WARRANTY: Company is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Company application to conform to any applicable warranty, you may notify an App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the Company application, and to the maximum extent permitted by applicable law, an App Distributor will have no other warranty obligation whatsoever with respect to the Company application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility. (4) PRODUCT CLAIMS: You acknowledge that Company, not an App Distributor, is responsible for addressing any claims of yours or any third party relating to the Company application or your possession and/or use of the Company application, including, but not limited to: (i) product liability claims; (ii) any claim that the Company application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. (5) INTELLECTUAL PROPERTY RIGHTS: You acknowledge that, in the event of any third party claim that the Company application or your possession and use of the Company application infringes a third party’s intellectual property rights, the App Distributor will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. (6) LEGAL COMPLIANCE: 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. (7) THIRD PARTY TERMS OF AGREEMENT: You must comply with applicable third party terms of agreement when using the Company application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the Company application. (8) THIRD PARTY BENEFICIARY: Company and you acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
As part of the functionality of the Website, you may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Website; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “Social Network Content”) so that it is available on and through the Website via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Website. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then Social Network Content may no longer be available on and through the Website. You will have the ability to disable the connection between your account on the Website and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any Social Network Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Website. At your request made via email to our email address listed below, or through your account settings (if applicable), Company will deactivate the connection between the Website and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Kiosks, the Website, the FuelRod Club Membership or the Company Services ("Submissions") provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Kiosks, Website or the FuelRod Club Membership for any purpose other than that for which Company makes it available. The Kiosks, the Website and the FuelRod Club Membership may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Company. Prohibited activity includes, but is not limited to:
- attempting to impersonate another user or person or using the username of another user;
- criminal or tortious activity;
- deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Kiosks or the Website;
- deleting the copyright or other proprietary rights notice from the Kiosks or any Website content;
- harassing, annoying, intimidating or threatening any Company employees or agents engaged in providing any portion of the Company Services to you;
- interfering with, disrupting, or creating an undue burden on the Kiosks or the Website or the networks or services connected to the Kiosks, the Website or the FuelRod Club Membership ;
- making any unauthorized use of the Company Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses;
- tricking, defrauding or misleading Company and other users, especially in any attempt to learn sensitive account information such as passwords;
- using any information obtained from the Kiosks or the Website in order to harass, abuse, or harm another person;
- using the Company Services as part of any effort to compete with Company or to provide services as a service bureau; and
- using the Kiosks or the Website or the FuelRod Club Membership in a manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
The content on the Kiosks and the Website (“Company Content”) and the trademarks, service marks and logos contained therein (“Marks”) are owned by or licensed to Company, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company Content, includes, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics. All Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Company in the United States and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Company Content is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Provided that you are eligible to use the Kiosks and the Website, you are granted a limited license to access and use the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for your personal, non-commercial use. Company reserves all rights not expressly granted to you in and to the Kiosks, the Website, Company Content and Marks.
THIRD PARTY WEBSITES AND CONTENT
The Kiosks or the Website may contain (or you may be sent through the Kiosks or the Website or the Company Services) links to other websites ("Third Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Content"). Such Third Party Websites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Kiosks or the Website or any Third Party Content posted on, available through or installed from the the Kiosks or the Website, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Websites or the Third Party Content. Inclusion of, linking to or permitting the use or installation of any Third Party Website or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Kiosks or the Website and access the Third Party Websites or to use or install any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Kiosks or the the Website or relating to any applications you use or install from the Kiosks or the Website. Any purchases you make through Third Party Websites will be through other websites and from other companies, and Company takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
Company reserves the right but does not have the obligation to:
- monitor the Kiosks and the Website for violations of this Agreement;
- take appropriate legal action against anyone who, in Company’s sole discretion, violates this Agreement, including without limitation, reporting such user to law enforcement authorities;
- in Company’s sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any user’s contribution or any portion thereof that may violate this Agreement or any Company policy;
- in Company’s sole discretion and without limitation, notice or liability to remove from the Kiosks or the Website or otherwise disable all files and content that are excessive in size or are in any way burdensome to Company’s systems;
- otherwise manage the Kiosks and the Website in a manner designed to protect the rights and property of Company and others and to facilitate the proper functioning of the Kiosks and the Website.
TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Kiosks, the Website or the Company Services, or are otherwise a user or member of the Kiosks or the Website, as applicable. You may terminate your use or participation at any time, for any reason, by following the instructions for terminating user accounts in your account settings, if available, or by contacting us using the contact information below.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE KIOSKS AND THE WEBSITE AND THE COMPANY SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE YOUR USE OR PARTICIPATION IN THE KIOSKS AND THE WEBSITE AND THE COMPANY SERVICES, DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN COMPANY’S SOLE DISCRETION.
In order to protect the integrity of the Kiosks and the Website and the FuelRod Club Membership and Company Services, Company reserves the right at any time in its sole discretion to block certain IP addresses from accessing the Kiosks and the Website and Company Services.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
YOU UNDERSTAND THAT CERTAIN STATES ALLOW YOU TO CANCEL THIS AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF COMPANY’S THIRD BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL, CALL A COMPANY CUSTOMER CARE REPRESENTATIVE DURING NORMAL BUSINESS HOURS USING THE CONTACT INFORMATION LISTING BELOW IN THIS AGREEMENT OR BY ACCESSING YOUR ACCOUNT SETTINGS. THIS SECTION APPLIES ONLY TO INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
If Company terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on the Kiosks and the Website and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Company Services after any such modification becomes effective. Company may also, in its discretion, choose to alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings to ensure you are informed of changes. You agree that you will periodically check the Kiosks and the Website for updates to this Agreement and you will read the messages we send you to inform you of any changes. Modifications to this Agreement shall be effective after posting.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Company Services.
If there is a dispute between users of the Kiosks or the Website, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Company Services.
With CompanyGoverning Law; Jurisdiction. This Agreement and all aspects of the Kiosks, the Website and Company Services, with the exception of the FuelRod Club Membership, shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in San Diego County, State of California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Kiosks, the Website or Company Services be instituted more than two (2) years after the cause of action arose. Disputes arising from or related to the FuelRod Club Membership are governed as set forth in the FuelRod Club Membership Agreement (Exhibit A).
- Informal Resolution. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other.
- Binding Arbitration. If you and Company are unable to resolve a Dispute through informal negotiations, either you or Company may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Company will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in San Diego County, State of California. Except as otherwise provided in this Agreement, you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Restrictions. You and Company agree that any arbitration shall be limited to the Dispute between Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
- Exceptions to Informal Negotiations and Arbitration. You and Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of any of your or Company’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief. If this Section is found to be illegal or unenforceable, then neither you nor Company will elect to arbitrate any Dispute falling within that portion of this Section found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and you and Company agree to submit to the personal jurisdiction of that court.
Occasionally there may be information on the Kiosks or the Website that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
Company cannot control the nature of all of the content available on the Kiosks or the Website. By operating the Kiosks and the Website, Company does not represent or imply that Company endorses any blogs, contributions or other content available on or linked to by the Kiosks or the Website, including without limitation content hosted on third party websites or provided by third party applications, or that Company believes contributions, blogs or other content to be accurate, useful or non-harmful. We do not control and are not responsible for unlawful or otherwise objectionable content you may encounter on the Kiosks or the Website or in connection with any contributions. The Company is not responsible for the conduct, whether online or offline, of any user of the Kiosks or the Website or Company Services.
YOU AGREE THAT YOUR USE OF THE KIOSKS AND THE WEBSITE AND THE FUELROD CLUB MEMBERSHIP AND COMPANY SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE KIOSKS AND THE WEBSITE AND THE FUELROD CLUB MEMBERSHIP AND THE COMPANY SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OF THE KIOSKS OR THE WEBSITE OR THE CONTENT OF ANY WEBSITES LINKED THERETO AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE KIOSKS OR THE WEBSITE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE KIOSKS OR THE WEBSITE OR THE FUELROD CLUB MEMBERSHIP OR COMPANY SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE KIOSKS OR THE WEBSITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE KIOSKS OR THE WEBSITE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE KIOSKS OR THE WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES ARISING FROM YOUR USE OF THE KIOSKS OR THE WEBSITE OR THE FUELROD CLUB MEMBERSHIP OR COMPANY SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY SERVICES DURING THE PERIOD OF THREE (3) MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING.
CERTAIN STATE LAWS DO 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 OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your contributed content, use of the Company Services, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to the address listed in the contact information below. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify. Notice shall be deemed to be given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail.
The Kiosks and the Website will maintain certain data that you transfer to the Kiosks and the Website for the purpose of the performance of the Company Services, as well as data relating to your use of the Company Services. Although we perform regular routine backups of data, you are primarily responsible for all data that you have transferred or that relates to any activity you have undertaken using the Company Services. You agree that Company shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against Company arising from any such loss or corruption of such data.
Your use of the Company Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS, INCLUDING THIS AGREEMENT. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE COMPANY SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Users are allowed on the Kiosks and the Website to transmit and receive valid electronic signatures in the United States under the Electronic Signatures in Global and National Commerce Act (E-Sign Act) of 2000 and the Uniform Electronic Transactions Act (UETA) of 1999 as adopted by individual states. Users’ signatures and identities are not authenticated on FuelRod.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Company Services. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company's reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and Company as a result of this Agreement or use of the Kiosks or the Website or the FuelRod Club Membership or Company Services. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
In order to resolve a complaint regarding the Company Services or to receive further information regarding use of the Company Services, please contact Company as set forth below.
Tricopian, Inc. (DBA: FuelRod)
2683 Via De La Valle, Suite G228
Del Mar, CA 92014, USA
Phone: (844) 383-5763
If any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
EXHIBIT A: FuelRod Club Membership Agreement
This FuelRod Club Membership Agreement, hereinafter referred to as "Agreement," is entered into and made effective by and between the following parties:
FuelRod Club a subsidiary of Tricopian, Inc. DBA FuelRod ("Organization"), a corporation, incorporated under the laws of the state of Delaware, having its principal place of business at the following address (“Contact Us”):
Website Address: www.fuel-rod.com
Mail Address: 2683 Via De La Valle, Suite G228, Del Mar, CA 92014
Phone: (844) 383-5763
all current and future members of Organization, specifically here the following member: FuelRod Club Member ("Member"), the current individual agreeing to the terms of this Agreement, having a residence at the following address:
As per Member profile on file
Email: As per Member profile on file
Organization and Member may be referred to individually as "Party" and collectively as the "Parties."
WHEREAS, Organization is designed for the following purpose, explained more fully below: Mobility Products and Services;
WHEREAS, Member would like to join Organization and acknowledges and agrees to be bound by the terms and conditions listed herein;
NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do agree as follows:
Article 1 - MEMBERSHIP:
This Agreement forms a legally binding agreement between Member and Organization and governs the Member's access and use of Organization's services (the "Membership Services") and physical locations. This Agreement also covers Organization's provision of the Membership Services and physical locations. Hereinafter, "you" and other third-person pronouns will refer to Member.
BY ACCESSING OR USING ANY OF THE MEMBERSHIP SERVICES, YOU AGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT AND ANY AMENDMENTS THERETO. READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE MEMBERSHIP SERVICES, ESPECIALLY SINCE THIS AGREEMENT MAY AFFECT YOUR LEGAL RIGHTS, SUCH AS REQUIRING BINDING INDIVIDUAL ARBITRATION, AND LIMITING YOUR RIGHT TO BRING A LAWSUIT OR CLASS ACTION. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY CEASE USE OF ANY OF THE MEMBERSHIP SERVICES.
Article 2 - MEMBERSHIP SERVICES:
The Membership Services provided by Organization to Member in good standing whose membership has not expired, been cancelled, or otherwise terminated per Article 4 are as follows:
The Membership Services will specifically include the ability and responsibility of Organization to deal with all requisite third parties.
The Membership Services provided by Organization also include the use of Organization's physical locations at:
FuelRod mobile app(s), online store(s) and kiosk locations nationwide
Article 3 - FEES:
Member will be responsible for the payment of fees for the Membership Services (the "Fees"). The amounts of the semi-annual and annual Fees are set forth on the website of Organization (www.fuel-rod.com ). The Fees are due and payable to Organization on a semi-annual or annual basis.
The first Fees payment is due on the date of membership enrollment in Organization (“Enrollment Date”). Thereafter, semi-annual and annual Fees are due in advance on the first day of the six-month and twelve-month anniversary of the Enrollment Date, respectively (the Billing Cycle).
Fees may be paid via the following methods:
As per user-provided payment methods on file
Article 4 – RENEWAL AND TERMINATION:
This Membership Agreement shall continue and be automatically renewed with the Fees due at the start of each Billing Cycle until terminated by either Party.
In order for Member to cancel, they must contact Organization at least fourteen (14) days before the next Billing Cycle to allow for adequate processing time. (See Contact Us above.)
This Agreement may also be immediately terminated in the event that there is a breach of the terms of this Agreement by either Party. This Agreement will also immediately terminate upon Organization’s receipt of notice of the death of the Member, the inability of the Member to pay the Fees required, the liquidation, dissolution or discontinuance of Organization by Organization in any manner, or the filing of any petition by or against Organization under federal or state bankruptcy or insolvency laws.
Article 5 - LIMITED LICENSE:
Member acknowledges and agrees that Organization's name, services, and any logos, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation, any copyrights, patents, trademarks, proprietary or other rights arising thereof, are owned by Organization or its affiliates, licensors, or suppliers.
Member acknowledges and agrees that the source and object code of certain Membership Services and the format, directories, queries, algorithms, structure, and organization of the same are the intellectual property, proprietary, and confidential information of Organization and its affiliates, licensors, and suppliers.
Member expressly agrees not to do anything inconsistent with Organization's ownership of all of the intellectual property discussed herein. Member further agrees that there are no rights, title, or interest in or to any Membership Services, except as stated in this Agreement. In addition, except as expressly set forth in this Agreement, Member is not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary rights of Organization or any third party.
For any Membership Services which enable you to use any software, content, equipment or other physical or non-physical materials owned or licensed by us, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the specific Membership Services, and any related software, content, equipment or other materials FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
Article 6 - RESTRICTIONS:
You are prohibited from, and expressly agree that you will not:
(i) circumvent or disable any content protection system or digital rights management technology used with any Membership Services;
(ii) decompile, reverse engineer, disassemble or otherwise reduce any Membership Services to a human-readable form;
(iii) remove identification, copyright, or other proprietary notices in or on the Membership Services;
(iv) access or use any Membership Services in an unlawful or unauthorized manner, or in a manner that suggests an association with our content, products, services or brands, unless you have an executed agreement with us that allows for such activity;
(v) use, alter, copy, modify, store, sell, reproduce, distribute, republish, download, publicly perform, display, post, transmit, create derivative works of, or exploit any Membership Services or any part thereof, except as expressly authorized in this Agreement or as part of the Membership Services provided to you;
(vi) introduce a virus or other harmful component, or otherwise tamper with, impair, or damage any Membership Services or connected network, or interfere with any person or entity's use or enjoyment of any of the Membership Services;
(vii) access, monitor, or copy any element of the Membership Services using a robot, spider, scraper or other automated means or manual process without our express written permission; or
(viii) sell, resell, or make commercial use of the Membership Services, unless you have an executed agreement with us that expressly allows for such activity.
Article 7 – THIRD-PARTY SERVICES:
Article 8 - MEMBER CONSENTS:
Member agrees to hold Organization, its owners, affiliates, and representatives, harmless from any damage, whether tangible or intangible, that may happen to Member while participating in the Membership Services.
Member agrees that Organization offers its membership program with no guarantee of results of any kind. Member agrees that any results that occur during their membership, whether positive or negative, are the effects of Member's own personal choices.
Member agrees and verifies that all of the information they have given Organization and its representatives is accurate, up to date, and without the omission of any requested information.
Member agrees and verifies that even if they have omitted any necessary personal information, whether knowingly or unknowingly, they will hold Organization harmless against all liability for any damages that may occur to Member or others because of Member's actions or inactions.
Member agrees to notify Organization Membership Group of any changes or upcoming changes concerning their personal information.
Article 9 - ASSUMPTION OF RISK:
Member agrees and understands that their participation in the Membership Services may involve risks. These risks may lead to tangible or intangible harm, and Member agrees that these risks may result not only from their own actions but also from the actions of others. With the knowledge and understanding of these risks, Member chooses, of their own will and volition, to participate in the Membership Services.
Article 10 - INDEMNIFICATION:
Member agrees to defend and indemnify Organization and any of its affiliates (if applicable) and hold them harmless against any and all legal claims and demands, including reasonable attorney's fees, which may arise from or relate to Member's use or misuse of the Membership Services, Member's breach of this Agreement, or Member's conduct or actions. Member agrees that Organization shall be able to select its own legal counsel and may participate in its own defense, if so desired.
Article 11 - REPRESENTATION:
Member agrees that they are over eighteen (18) years of age and may legally consent to and enter into this Agreement.
Article 12 - ENTIRE AGREEMENT:
This Agreement constitutes the entire understanding between the Member and Organization with respect to any and all use of the activities and facilities. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the Parties' relationship.
Article 13 - COUNTERPARTS:
This Agreement may be executed in counterparts, all of which shall constitute a single agreement. The Agreement shall be effective as of the date set forth above.
Article 14 - SURVIVAL:
Any provision of this Agreement which by its terms imposes continuing obligations on either of the parties shall survive termination of this Agreement.
Article 15 - SEVERABILITY:
If any part or subpart of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
Article 16 - DISPUTE RESOLUTION:
In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the county and state noted in the GOVERNING LAW provision of this Agreement. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing federal law as well as the law of Delaware. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by Organization will not be subject to arbitration and may, as an exception to this sub-part, be litigated in federal or state court. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
Article 17 - GOVERNING LAW:
This Agreement shall be governed by and construed in accordance with the internal laws of Delaware without giving effect to any choice or conflict of law provision or rule. Each Party irrevocably submits to the exclusive jurisdiction of an arbitrator or federal/state court as provided herein and the exclusive venue of San Diego County, CA.
Article 18 - NOTICES:
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement. All notices shall be delivered by email or at the address which the parties may designate to each other, personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving Party has received the Notice and (b) the Party giving the Notice has complied with the requirements of this Section.
Article 19 - HEADINGS:
Headings to this Agreement are for convenience only. Headings shall in no way affect the provisions themselves and shall not be construed in any way that would limit or otherwise affect the terms of this Agreement.