AGREEMENT
This Agreement (hereinafter referred to as the "Agreement") explains the contractual agreement between Heatingoil4less.com, a New York corporation having its principle place of business in Oyster Bay, New York 11771 ("Heatingoil4less.com," "we," "us") and you ("Company," "you," "your") who agrees to the terms of this Agreement by clicking the "I AGREE" checkbox on the Registration form under "Part D: Agreements." This Agreement is made to be effective as of the date accepted by Heatingoil4less.com following your execution and submission of this Agreement by clicking the "I AGREE" checkbox on the Registration form under "Part D: Agreements." This Agreement governs your use of the Heatingoil4less.com Web Site (the "Web Site") and transactions conducted through this Web Site. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be bound, hereby agree as follows
1. CLICK THE "I AGREE" CHECKBOX
By using the Web Site clicking the "I AGREE" checkbox on the Registration form under "Part D: Agreements," you acknowledge your acceptance of the terms and conditions of this Agreement. By accepting the terms and conditions of this Agreement and completing the registration process, you are simultaneously (i) registering as a "Registered User" (as defined herein), (ii) designating yourself as a "Company" (as defined in Section 3) (iii) representing and warranting that you can legally enter into this Agreement, and (iv) agreeing to the terms and conditions of this Agreement. If you do not accept this Agreement, you are not authorized to use the Web Site. If you have any questions about this Agreement, please call us at (516) 802-3406 or contact info@Heatingoil4less.com. the term "Registered Users" includes all individuals or entities who have registered through the Heatingoil4less.com Web Site.
Furthermore, Heatingoil4less will pass along the buyers credit card information for each purchase of oil through the system. The credit card information will be deleted at that point. The process is as follows: Buyer will submit order through the heatingoil4less platform, the buyer will be asked for their credit card information to be submitted. Once submitted the buyer will be charge a processing fee from HO4L. Then the purchase order will be sent out to our supplier partner and they will place a hold on the funds due for the oil purchase. After the delivery is made, the oil supplier will submit a bill for the exact amount that is pumped into the buyers tank.
To conclude, there will be 2 charges billed to your credit card, one for the processing fee and the other for the oil payment.
2. SCOPE OF SERVICES
Heatingoil4less.com shall provide services to all Individual Home Owners and Home Heating Oil Companies.
A. Services shall be provided to Registered Users via the Heatingoil4less.com Web Site and shall be in the form deemed appropriate by Heatingoil4less.com from time to time. Heatingoil4less.com may add, delete, or modify some or all of the Services at any time. We do not control the actual transactions between the Registered Users. Accordingly, we do not set or endorse: (i) the price, contract terms, quality, conformance or legality of the oil advertised or offered; (ii) the ability of Home Heating Oil Companies to perform; or (iii) the ability of Individual Home Owners to perform. We cannot and do not control whether any Home Heating Oil Company will complete the transaction they offer. We are not responsible for any transaction and/or contact, or the result of any such transaction and/or contact made by and between Registered Users. From time to time, we will provide features and services which either are or shall be set forth in separate sections of the Web Site, which are subject to the terms of this Agreement, but are also subject to the additional terms and pricing specified on the Web Site. With respect to these features and services provided on our Web Site, you will be charged, and agree to pay us any fees, as set forth in separate sections of the Web Site detailing such features and services.
B. The Individual Home Owner pays Heatingoil4less.com a $6.99 processing fee to use this Web Site. For that fee, the Individual Home Owner receives an Application which gives the Individual Home Owner access to the consolidated pricing of oil in their area. Once an Individual Home Owner accepts a Heatingoil4less.com price, the Individual Home Owner will pay the $6.99 processing fee to Heatingoil4less.com by credit card. Upon payment of the $6.99 processing fee, Heatingoil4less.com will email the Home Heating Oil Company notice that a request for delivery has taken place. A purchase order will be sent to the Home Heating Oil Company and an invoice will be sent to the Individual Home Owner. Heatingoil4less.com shall have no further obligations thereafter. The Home Heating Oil Company will contact the Individual Home Owner directly to arrange for delivery of the home heating oil and the delivery of same.
3. SYSTEM INTEGRITY
You may not use any device, software or routine, including but not limited to any viruses, Trojan horses, worms, time bombs, cancel bots or denial-of-service attacks, intended to damage or interfere with the proper working of the Web Site or any transaction being conducted on our site, or to surreptitiously intercept or expropriate any system, data or personal information from the Web Site. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to "spam" or other such unsolicited mass emailing techniques.
4. INFORMATION POSTED ON THE WEB SITE
A. You are solely responsible for information that you post on our Web Site, including but not limited to any posting or listing in any public message area or through any email feature. You grant us a non-exclusive, worldwide, perpetual, royalty free, irrevocable right to exercise all copyright and publicity rights with respect to this information. Your information must not: (a) infringe any third party's rights, including but not limited to intellectual property, publicity or privacy; (b) be defamatory, trade libelous, threatening or harassing; nor (c) be obscene, indecent or contain pornography. We do not endorse any information posted by Registered Users and we are not liable for any such information posted on our site, including but not limited to any information posted about you. We reserve the right to take any action with respect to information posted on our site which we believe is appropriate in our sole discretion with respect to such information, including but not limited to termination of this Agreement. However, we cannot, nor do we, control the information provided by you or other Registered Users or other content providers which is made available through our system. By its very nature, other people's information may be offensive, harmful, inaccurate, or in some cases may be mislabeled or deceptively labeled. Information on the Heatingoil4less.com Web Site is provided "AS IS" and may contain technical inaccuracies or typographical errors.
B. The Web Site may contain links to third-party web sites not under the control or operation of Heatingoil4less.com. When we provide links, we do so only as a convenience and do not endorse and are not responsible for the content of any linked site or any link contained in a linked site.
5. RELATIONSHIP AND OBLIGATIONS OF PARTIES
A. Heatingoil4less.com provides Services for Registered Users, including you, other Home Heating Oil Companies and Individual Home Owners. All parties are independent contractors vis-à-vis Heatingoil4less.com with respect to all matters arising out of this Agreement. No Registered User shall be considered the employee, agent, partner or joint venturer of Heatingoil4less.com and Heatingoil4less.com shall not be considered the employer, agent, partner or joint venturer of any Registered User.
B. You agree and understand that Heatingoil4less.com is simply acting to facilitate transaction between Registered Users. Heatingoil4less.com is not responsible for the transactions between the Registered Users.
C. You agree that you will abide by any and all applicable non-discrimination, employment, tax and other federal and state statute(s), regulation or common law. You agree to hold harmless and indemnify Heatingoil4less.com for any and all liability arising from a violation of any such statute, regulation or common law.
6. PAYMENT TERMS
A. Individual Home Owner pays to Heatingoil4less.com less a processing fee of $6.99 plus applicable New York State sales tax by merchant credit card or electronic check via AUTHORIZE.NET credit card service.
B. Home Heating Oil Company will make payment to Heatingoil4less.com within fifteen (15) days of the date of any invoices rendered to them.
7. TERM AND TERMINATION
A. This Agreement shall become effective upon the execution hereof by the parties, as described above, and shall continue until terminated by Heatingoil4less.com or you as provided for under the terms of Section 10(B) of this Agreement.
B. Unless otherwise agreed to in writing between the parties, either party may terminate the Service at any time upon notice to the other party.
8. PRIVACY AND CONFIDENTIALITY
A. Your use of the Web Site and the services provided therein and thereby is governed by the terms of this Agreement and the Heatingoil4less.com Privacy Policy. It is your responsibility to review the Heatingoil4less.com Privacy Policy ("Privacy Policy"), which is incorporated by reference into this Agreement in its entirety, and we suggest that you review the Privacy Policy and print a copy for yourself. The Privacy Policy is posted on the Web Site and may be updated from time to time. If at any time you are not in compliance with the Privacy Policy, we have the right to terminate your rights of use and access to the Web Site and to terminate this Agreement. Unfortunately, we cannot ensure that disclosure of your personal information will not occur in ways not described in the Privacy Policy. We may be required by law to disclose information to government authorities, law enforcement agencies or third parties upon subpoena, and you authorize us to disclose information as we believe, in our sole discretion, is necessary or appropriate.
B. Any user identification ("User ID") and password, and any authorization codes or similar verification identifiers provided to you by us should be maintained as confidential and should not be distributed or disclosed to third parties. It is your responsibility to notify us if you need to change or discontinue your User ID and password and/or authorization codes, if applicable. You may only do so by: (i) sending us a notice, or (ii) contacting us at info@Heatingoil4less.com.
9. OWNERSHIP
The Web Site and all intellectual property rights related to the Web Site, including but not limited to copyrights, trademarks, service marks and any feedback left by Registered Users on the Web Site, are owned or licensed by us, and all right, title and interest in the Web Site and the related intellectual property rights remain our property. You may not reproduce, reverse engineer, decompile, disassemble, modify or create derivative works with respect to the Web Site and the related intellectual property, including any services provided via the Web Site, and this Agreement does not grant you permission to do so. Certain content is licensed from third parties. All such third party content and all intellectual property rights related to that content belong to the respective third parties. You may not remove any copyright, trademark, or other intellectual property or proprietary notice or legend contained in the Web Site, including any Web Site content.
10. WARRANTIES
A. Each party warrants that it has the right and or full corporate power and authority to enter into this Agreement.
B. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS," WHERE IS, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESSED OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY REGISTERED USER OR THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEB SITE BY ANY REGISTERED USER.
11. INDEMNIFICATION
A. You agree to defend, hold harmless and indemnify Heatingoil4less.com from and against any and all losses, costs, expenses, damages or other liabilities incurred by Heatingoil4less.com from and against any cause of action, claim, suit or proceeding brought by a third party against Heatingoil4less.com in connection with your use of the Services including any payment obligations incurred through use of the Services. You further agree to indemnify, defend and hold Heatingoil4less.com harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) resulting from: (i) your use of the Web Site (ii) your decision to supply credit information via the Web Site, including personal financial information; (iii) your decision to submit postings and accept offers from other Registered Users; (iv) any breach of contract or other claims made by Registered Users with which you conducted business through the Web Site; (v) your breach of any provision of this Agreement; (vi) any liability arising from the tax treatment of payments or any portion thereof; (vii) any negligent or intentional wrongdoing by any Registered User; (viii) any act or omission of yours with respect to the payment; (ix) your dispute of or failure to pay any invoice or any other payment; and/or (x) your obligations under this Agreement. Any such indemnification shall be conditioned on our: (a) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with you in the defense or settlement thereof; and (c) allowing you to control such defense or settlement. We shall be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
B. In connection with your indemnification obligations as provided for above, Heatingoil4less.com agrees to (a) notify you in writing promptly after learning of any such claim; (b) turn over to you all responsibilities and control with respect to such claim; and (c) reasonably cooperate with you in the defense thereof.
12. LIMITATION OF LIABILITY
A. IN NO EVENT SHALL Heatingoil4less.com BE LIABLE TO YOU OR ANY OTHER REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. In the event that you have a dispute with one or more Registered Users, you release us (and our agents and employees) from claims, demands and damages (actual, consequential and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Web Site, the Services, or such dispute. You waive the provisions of any state law limiting or prohibiting a general release.
C. Notwithstanding any other provision of this Agreement, in no event will Heatingoil4less.com's liability to you for any action or claim related to the Services provided under this Agreement, whether based on contract, tort, negligence, or any other theory of liability, exceed in the greater of: (A) $1000 or (B) the aggregate amount of service charges actually collected by Heatingoil4less.com from you for the cervices to which the liability relates during the six (6) month period immediately preceding the determination of such liability.
D. Our contracts with certain of our suppliers provide for scheduled maintenance, preventative maintenance, and emergency maintenance work. We will have no liability whatsoever for any unavailability of the Web Site caused by our supplier's performance or lack of performance of the maintenance work needed to keep the Web Site operable. We will also not have any liability for any loss of data or transactions resulting from delays, non-deliveries, mis-deliveries or service interruptions caused by us, any third party acts, the acts of any web services provider or problems with the Internet infrastructure and networks external to the Web Site. The limitations of liability provided in this Agreement inure to the benefit of us, our affiliates and all of our respective officers, directors, employees, attorneys and agents.
13. ASSIGNMENT
Heatingoil4less.com has the right to transfer or assign this Agreement and the rights hereunder to any other person or entity without your consent. You do not have the right to assign or transfer this Agreement or any rights thereunder to any other person or entity without our prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the successors and permitted assigns of the parties hereto.
14. GOVERNING LAW AND JURISDICTION
The Heatingoil4less.com Web Site (excluding linked sites) is operated by us from our offices within the State of New York, United States of America. It can be accessed from all 50 states and from other countries around the world. As each of these places has laws that may differ from those of New York, by accessing the Web Site, you agree that this Agreement and your use of the Web Site, and the services offered therein and thereby, shall be governed in all respects by the internal substantive laws of the State of New York, without regard to conflict of laws provisions and shall not be governed by the United Nations Convention on the International Sale of Goods. You further submit to jurisdiction and venue in the state and federal courts located in the State of New York and further agree that any cause of action you may bring arising under your use of the Web Sites shall be brought by you exclusively in a state or federal court located in the State of New York. We make no representation that materials on the Web Site are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws.
15. MISCELLANEOUS
A. This Agreement, and all writings, web pages, agreements and policies, including, but not limited to, the Heatingoil4less.com Privacy Policy, incorporated herein, contains the entire Agreement between the parties and supersedes any prior agreement, negotiation or understanding of the parties, whether oral or in writing, with respect to the subject matter of this Agreement. Any representations, promises or conditions not incorporated herein shall not be binding upon Heatingoil4less.com or Registered User or their respective successors and assigns. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of both parties.
B. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions enforced. Headings are for reference purposes only. Failure of either party to act or exercise its respective rights under this Agreement upon the breach of any other terms hereof by the other party shall not be construed as a waiver of such a breach or prevent said party from thereafter enforcing strict compliance with any or all of the terms thereof.
C. This Agreement does not create a relationship of agency, partnership, or representation between Heatingoil4less.com and you for any purpose whatsoever, it being understood between the parties hereto that Heatingoil4less.com and Registered User are to act as an independent contractors and are not authorized to make any contract, agreement, warranty or representation on behalf of each other.
D. Neither of the parties to this Agreement shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
E. You must comply with all applicable laws, statutes, ordinances and regulations regarding: (i) your use of the Web Site and the Services and any Other Services provided thereby or therein; (ii) your ordering or posting of, services or offers, if applicable; and (iii) the posting and retrieval of information by you, including without limitation those governing antitrust, unfair competition, false advertising, taxation and export control. You are responsible for paying all applicable fees and taxes you incur in connection with access to our servers and our Web Site.
F. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of laws provisions.
G. The provisions of this Agreement will survive any termination or expiration of this Agreement for any reason.
H. All notices required or permitted to be given under this Agreement, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by pre-paid telex, telefax or telegram, or mailed first-class, postage pre-paid, by registered or certified mail (notices sent by telex or telefax, or telegram, shall be deemed to have been given on the date sent; those mailed shall be deemed to have been given ten (10) business days after mailing) to the addresses set forth below or to such other address as any party shall designate by notice in writing.
If to Heatingoil4less.com:
108 Blair Road
Oyster Bay Cove, New York 11771
If to Registered User:
To the address associated with Registered User's access or login information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. By clicking the "I AGREE" checkbox on the Employer Registration form under "Part D: Agreements," you agree to the terms of this Agreement and, by reference herein, the terms of the Heatingoil4less.com Privacy Policy
