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earnify™ Terms and Conditions

earnify™ Terms and Conditions

(November 2023)

 

1. Introduction

These terms and conditions, including any terms incorporated herein by reference (collectively, the “Terms”) constitute a binding agreement between you and BP Products North America Inc. (together with its affiliates, successors, assigns and subsidiaries, which BP now owns or may own in the future (referred to collectively herein as “BP”, “us” or “we”) relating to your use of any earnify platform  (“earnify”) and associated Service (as defined below).

 

The “Service” includes earnify, which is a Program that permits registered users to earn rewards, and receive other promotions and offers, (collectively “earnify”). The Service also includes the earnify App, which allows users to register valid qualifying “Payment Cards,” the form of which will be allowed at BP’s discretion, into the earnify App and to use such Payment Cards to complete certain Payment Card related transactions at participating  locations (“BP/amoco Locations”) and/or to receive rewards and other benefits on purchased items pursuant to earnify. The Service may include any other promotion, app, or program BP may at its discretion decide to use, incorporate, or implement as part of earnify now or in the future. The Service is provided to you by BP and may be powered by a third party mobile technology solution.

 

PLEASE READ THESE TERMS CAREFULLY - Use of earnify, the Service or any other service provided through earnify constitutes acceptance of these Terms and you agree to be bound by these Terms. You represent and warrant that you are over sixteen (16) years of age, have a legal residence in the United States and that you are capable of entering into a legally binding agreement.  If you are between sixteen (16) and eighteen (18) years of age, you may only use earnify and Services under the supervision of your parent or legal guardian who agrees to be bound by these Terms. Your right to use earnify and the Service is conditioned upon your acceptance and compliance with these Terms. If you do not agree to be bound by these Terms, you are not authorized to use earnify or Service and you should delete earnify immediately and discontinue any access to or use of the Service.  In the Terms, “you” or “Your” means all persons responsible for complying with these Terms, including any persons that you authorize to use earnify, the Service or your account.  
    
NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION, CLASS ACTION WAIVER AND JURY TRIAL WAIVER THAT AFFECTS YOUR RIGHTS REGARDING HOW TO RESOLVE DISPUTES WITH BP. PLEASE READ IT CAREFULLY. IT IS CONTAINED IN SECTION 22 BELOW. 

 

2. Enrollment; Use of Data; Registering Payment Cards

  1. You must complete the enrollment process in the earnify App to register as a user in order to use earnify and the Service. The enrollment process will ask you for information including your name, and other personal information to register. You may provide Payment Card information upon registration; however you are not required to provide a Payment Card to register – you are only required to provide a Payment Card to participate in the Pay for Fuel journey in the earnify app.
  2. You are not a member of earnify until you have fully enrolled. This includes acknowledging these Terms. Before you fully enroll, you are still subject to these Terms. Until you fully enroll, you are not eligible to redeem earnify. Once you do fully enroll, you will be able to fully redeem your earnify offers.
  3. If you were a BPme Rewards legacy member and choose to enter your loyalty ID (phone number) at the pump or by swiping your payment card registered to BPme, you will still be recognized as a loyalty member. At participating stations, you will then receive your 5cpg discount on fuel purchases. You will also now be earning 1 point per dollar spent on fuel and 2 points per dollar spent on convenience purchases. Keep in mind, you MUST download and register for the new earnify app to experience all program benefits and redeem your points for savings and rewards.
  4. For new bp rewards Visa® Credit Card Accounts, upon completing and agreeing to the terms of the bp rewards Visa® card application, if approved, cardholder will have opportunity to set their earnify password and complete their earnify registration. bp rewards Visa® Credit Card Account holders are also subject to the bp rewards Visa® Credit Card Terms and Conditions. You agree that you shall provide accurate and complete information in response to these questions and that you will keep the information that you provide up to date.
  5. Some BP Locations may have the option for you to register for earnify by entering your number at the pump. Where available, providing your phone number allows recurring messages from the bp shortcode 48219, you may text STOP to stop receiving messages. Auto marketing messages may be sent to the number used at opt in. Consent is not condition of purchase. Message and data rates may apply, mobile carriers are not liable for delayed or undelivered messages. You will receive a text will include a link to download the earnify app where you can complete your earnify registration. bp rewards Visa® cardholders will not become a member of earnify or start earning bonus offers until your earnify registration is complete. This will not affect you receiving any bp rewards Visa® Credit Card reward.
  6. In most instances, we will receive purchase information and credit rewards in real time or within 48 hours. We are not responsible for any failure or delay of the issuer of the bp rewards Visa® Credit Card or Payment Card to provide us with the necessary information to credit rewards to your account. Additionally, in our sole discretion, we may hold earned rewards in a pending status for certain purchases, such as those that are suspected of fraud. If so designated with a pending status, you will not be able to see them in your account nor will you be able to use them until we release them to your account. 
  7. By participating in earnify, you shall be subject to BP’s Privacy Policy located at https://www.bp.com/en_us/united-states/home/products-and-services/earnify/earnify-privacy-statement.html which may be updated from time to time, in BP’s sole discretion. For more details on the information BP collects, read BP’s privacy policy carefully. You authorize BP to monitor your earnify, earnify App and Service account activity. We have the right to take any necessary legal action based on fraud, abuse, or suspicious activity in connection with your account or any of your activities relating to earnify, earnify App and Service, and you agree to cooperate with any such action or investigation. If you are engaged in such activity, you may be liable for monetary losses, including litigation and/or arbitration costs and damages.
  8. Former Synchrony Financial BP Credit Card holders who were converted to FNBO will have the opportunity to complete their earnify Registration, (if not already a earnify member) as part of setting up their online banking account with FNBO.  BP Visa or BP Credit Card holders who have converted from SYF will be able to receive CPG rewards and earn points, but they will not have the ability to redeem rewards until they have completed the full earnify App registration. For new bp rewards Visa® Credit Card Accounts, upon completing and agreeing to the terms of the bp rewards Visa® card application, if approved, cardholder will have opportunity to login using their phone number and thus complete their earnify registration.
  9. You acknowledge and agree that use of earnify and the Service are limited to registered users of earnify that have enabled use of earnify and the Service. BP reserves the right to approve, deny or revoke your enrollment to use of earnify and/or Service for any reason.
  10. By registering a Payment Card in earnify, you represent and warrant that you are the holder of the associated account or an authorized user thereof and that such account is valid.
  11. In addition to and independent of these Terms, third party sponsors that work with BP for various rewards programs may have their own terms and conditions (“Sponsors”), which describe specifically how BP works at their locations. These terms and conditions may describe things such as how you earn rewards at their locations and which items are excluded from earning rewards. In certain cases, a Sponsor may also provide you with additional benefits that are not directly related to earnify. BP bears no liability under or responsibility for any Sponsor-provided terms and conditions, or for any associated additional benefits, which are offered solely by the applicable Sponsor, and may be changed or discontinued at that Sponsor’s exclusive discretion.
  12. You represent that all information you provided during enrollment and throughout your interactions with earnify are true and accurate. You agree to update your information, as necessary to maintain its truth and accuracy. You are responsible for all activities related to your account and for maintaining the confidentiality of your passwords.

 

3. Earning and Redeeming Rewards 

  1. earnify and the Service permits you to earn and redeem rewards in a variety of ways through a variety of programs at the discretion of BP. BP will make program information where consumers can learn about the specific ways users can earn or redeem earnify or participate in additional Services. By participating in any earnify program that BP may offer, you are agreeing to accept and be bound by these Terms. BP makes no representation or warranty that earnify or any Service will be available at any given participating BP Location or that any given transaction will be able to be completed using the Service.
  2. Phone Number for Redeeming Rewards (Loyalty ID)- Should you choose not to use the earnify app for registration or to pay your fuel transactions, you may be able to enter your phone number at either the pump or inside at the register to participate in earnify. This option varies depending on BP Location and at BP’s discretion. The mobile phone number that was used to validate the registration of your earnify account will be the phone number tied to your account. Before paying for a qualified purchase, enter that phone number either at the pump or inside at the register to participate in earnify. If you choose to use your earnify phone number, your reward will NOT stack with any other reward offers. If you use your earnify phone number, and it is the same number associated to your Roundy’s, Harris Teeter, or Mariano’s account, you will ONLY be able to use the grocer rewards, you will not be able to use earnify. If you use your earnify phone number and then pay with a bp rewards Visa®, you will ONLY receive the discounts available through earnify, you will not receive any rewards associated with your bp rewards Visa®. To get the bp rewards Visa® rewards, you must swipe that payment card alone (without using a phone number first), or add it and link it to your earnify account within the earnify app to gain access to BOTH the earnify and bp rewards Visa® fuel discounts. Entering your phone number at the pump or the pin pad will only allow you to receive the fuel cents per gallon discount and earn points for dollar spent, however you will not have the ability to redeem rewards without using the earnify app.   
  3. Active rewards are redeemable in the app. A consumer must choose to claim their rewards for any of the listed options. The rewards are not applied on your next fuel purchase. You may redeem points for rewards in the convenience store or at the pump at participating BP Locations.  
  4. Uber Pro drivers receive a 5cpg or 7cpg discount based on their previous transaction tier status.

 

4. Restrictions on Earning and Redeeming Rewards 

  1. You will not receive Rewards for: any purchases excluded by law; the value of any reward or coupons outside of earnify; purchases that a particular BP Location rule ineligible for earnify; or taxes on purchases.
  2. earnify points earned through the app will expire after three (3) months of no activity. Rewards earned through bp rewards Visa® Credit Card Accounts have no expiration on redemption of earned points. Special offers may be awarded from time to time in the earnify App or at BP Locations. earnify cannot be redeemed on tobacco products, alcohol, air, lottery, or any item sold directly by a third party. You can only use one registered earnify account per transaction. There is no ability to stack rewards from multiple earnify accounts.
  3. Rewards are not automatically applied. Active rewards may be redeemed by the member at their choice, provided the member makes such fuel purchase either through (i) a valid credit card provisioned in the earnify mobile wallet, (ii) a valid linked credit card at the pump or inside the store, or (iii) any other method expressly permitted by BP. 
  4. Rewards may vary depending on the offers, programs and promotions in operation at any given time. BP reserves the right in its sole discretion to amend redemption rights with respect to any earnify offers, programs or promotions it runs now or in the future.  
  5. Maximize savings and receive fuel rewards and gas discounts with your bp rewards Visa® by combining credit rewards and earnify.
  6. BP is not the issuer of any Payment Card and is not responsible for determining whether any transaction initiated by you will be approved.  For questions concerning your Payment Card or transactions on your Payment Card account, you must contact your issuer using the contact information provided by the issuer to you.
  7. You agree that you will exercise reasonable care in safeguarding any device on which you have installed earnify and keep your user name, password and personal identification number (“PIN”) confidential and secure, and that you will notify BP immediately if you believe that a fraudulent or unauthorized transaction has been conducted using the Service or if you become aware of any other breach of security relating to the Service.  Notwithstanding the foregoing, you acknowledge that your rights with respect to, and the procedures that you must follow for resolution of, fraudulent or unauthorized charges to your Payment Card account are as set forth in your agreement with the issuer of your Payment Card.  These Terms do not create any responsibility of BP to notify your issuer of fraudulent or unauthorized charge activity or to take any action on your behalf with respect thereto.
  8. You agree that your use of earnify is at your own risk and that you will not use earnify while operating a vehicle (also known as distracted driving).  You also agree to follow safety guidelines or warnings posted or made available (i) at the service station/gas station at which you use your earnify App and (ii) by your wireless carrier.
  9. You are responsible for any fees or other charges that your wireless carrier may charge for any related data or message services as a result of your use of earnify, the Service, or any other services provided through earnify.
  10. You may access your transaction history through earnify. Your transaction history will contain certain information concerning the transactions conducted with your account through the Service. Fuel prices are displayed on the entrance to the site and at all pumps. When using earnify to purchase fuel, you will always be charged the stated credit card price. To receive any exception prices (debit card pricing or discounts for specific credit card brands) that are locally offered by select stations, you may or may not be able to use your linked payment card to receive special pricing and qualify for earnify.

 

5. Payment Cards in the earnify™ Mobile Wallet

Payment: When creating your user account for the earnify app, you will be given an opportunity to input information for one or more of your credit cards into the earnify app. You may select to link one or more of these stored credit cards to your earnify app user account. Upon making this selection, transactions made using the earnify app at participating BP and Amoco service stations will be charged to your designated credit card, as applicable. Activation of this feature on the earnify app constitutes your authorization of all purchases made from your mobile device using the earnify app.  
   
The earnify app will not accept all credit cards. In addition, BP reserves the right to change, from time to time, the credit cards which may be linked to your account through the earnify app. BP further reserves the right to disable any credit cards already linked to your account at any time and for any reason.  
   
Authority: When you provide a payment credential to us, you authorize the earnify app to collect and store that payment credential, along with other related transaction information. When you fund a transaction, you authorize us (and our designated payment processor) to charge the full amount to the payment credential you designate for the transaction.  
   
earnify Mobile Wallet: When you add a valid payment card to the earnify app upon registration and enrollment in the earnify Program, all fuel purchases made using these payment cards within the earnify app will qualify for earnify. A single valid payment card can be added to multiple earnify mobile wallets.  BP reserves the right, in its sole discretion, to decline any transaction with such card, or deactivate such card from your earnify mobile wallet, in the event BP believes there has been any fraudulent activity on such card or such card is reported lost or stolen.   
   
Please note that if you use an Apple Pay wallet that is provisioned with a bp rewards Visa® credit card, you will not receive a cent per gallon reward at the pump. Instead, you will receive 1% Cash Back Rewards on those fuel purchases. If you wish to receive a cent per gallon reward at the pump when using a bp rewards Visa®, you must provision your bp rewards Visa® directly to your BPme account and use that to pay instead of Apple Pay.

 

7. Linked Payment Card  

When you add a valid Payment Card to the earnify App upon registration and enrollment in earnify, you may have the option to link that Payment Card to your earnify account. Qualified purchases made through such Payment Card both through the earnify app and outside of the earnify app (e.g., at the pump, inside the store, etc.) will qualify for earnify. Should you remove a payment card from the earnify app, such card will automatically be unlinked from your earnify program account.

 

8. bp rewards Visa® Card Holders

Should you add a valid bp rewards Visa®, to your earnify mobile wallet, qualifying purchases made on the bp rewards Visa® shall qualify for both Rewards and any other reward programs available through the bp rewards Visa® which such purchases may apply, subject to all applicable terms and conditions. bp rewards Visa® reward program terms and conditions which may be found at https://www.bp.com/en_us/united-states/home/terms-and-conditions.html#tab_credit-cards Limit: one (1) bp rewards Visa® per earnify mobile wallet account.

 

9. SMS Terms

By enrolling in earnify, and agree to receive SMS or MMS marketing messages from BP. Message frequency varies by user. Message and data rates may apply. To opt out of the earnify messaging program, send the word STOP to 38831 at any time. You understand and agree that text messages sent to your mobile phone/device may be generated using automated technology. Your consent to receive text messages is not required to make a purchase. For help or information on this program, send HELP to 38831. By subscribing to earnify the user consents to receive automated text messages from BP and its affiliates, other parties within BP, and Sponsors and their affiliates.

 

There is no fee from earnify to receive messages. Message & data rates may apply – this can be checked with your mobile service provider. Charges are billed and payable to your mobile service provider or deducted from your prepaid account. Consent is not a requirement for purchase.

 

Data obtained from you in connection with this SMS service may include your cell phone number, your carrier’s name and the date, time and content of your messages. We may use this information to contact you and to provide the services you request from us. Alerts sent via SMS may not be delivered if the mobile phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of the wireless carrier may interfere with message delivery. The wireless carrier does not guarantee that alerts will be delivered and will not be held liable for delayed or undelivered messages. 

 

For information on data collection and use, please read BP’s Privacy Policy. 

 

We will not be liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your network operator.  

 

Oklahoma residents: By executing the agreement, you authorize the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to you using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called; and you are not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.   

 

10. Additional Obligations 

BP is not responsible for any tax liability related to earnify or the Service. Any disputes concerning earnify or the Service will not affect your payment obligations for your fuel purchases. We are not responsible for any disputes among you or any authorized users relating to earnify or the Service.

 

11. Program Responsibility

BP makes no guarantees, warranties or representations of any kind concerning earnify or the Service. You release BP and its affiliates and partners from liability regarding or connected to any earning, redemption and use of Rewards, including, without limitation, any Rewards that, after receipt, may be lost, stolen or destroyed.

 

You acknowledge and agree that you have no ownership rights in your earnify account. You further acknowledge and agree that you have no third-party beneficiary rights in any agreement between us and any Sponsor, and that the only relationship created by these Terms is one between you and us.

 

12. Program Void

earnify or the Service are void where prohibited by federal, state or local law or regulations and in the State of California. These set forth all the terms of earnify or the Service. BP has no other obligation with respect to the earnify or the Service beyond those described in these Terms.

 

13. Account Information

To review your earnify accumulation, redemption and expiration status, please log in to your account on the earnify app.

 

14. Electronic Communications

Except as otherwise required by U.S. federal law, you acknowledge and agree that we may provide any notice permitted or required under these Terms via mail, email, posting on our website, SMS, in-app or push notification, or any other reasonable means.  By using earnify, you acknowledge and agree that we may communicate with you regarding earnify or the Service. electronically.  These communications will include notices about your account (e.g., change in password or Payment Card, confirmation e-mails, and other transactional information) and/or notices about special offers, news and information related to earnify. These communications are part of your relationship with BP. Such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by us.  You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy.

 

15. Changes to Services

BP may suspend or terminate your rights in and to earnify or the Service or any other services accessible through earnify, at any time, with or without notice, in BP’s sole discretion including, without limitation, if a newer version of earnify or a service thereof is available, to improve the earnify Program, earnify App or the Service or any functionality thereof; to add or remove your access to a service accessible through earnify; to improve ease of use for you or BP; to correct an error or bug; to prevent or discontinue harmful or improper access to earnify or the Service ; to prevent or discontinue unauthorized use of the earnify or the Service ; to comply with a platform provider or governmental or regulatory authority request; or to comply with a statue or judicial order.  We may provide notice to you of such changes or any suspension or modification to the extent required by applicable U.S. law.  

   
BP reserves the right, at our sole discretion, to add and remove features and capabilities from earnify or the Service and to create limits on the use of earnify or the Service, including, without limitation, additional registration or verification requirements or geographic restrictions, at any time and without notice.

 

16. Right to Modify Terms; Right to Terminate

BP may, with or without notice and in its sole discretion, modify, restrict or waive any of these Terms at any time. Your continued use of earnify or the Service constitutes your acceptance of any changes to these Terms. You are responsible for remaining knowledgeable of any changes that BP makes to the Terms. The most current version of these Terms will be available on the BP website and will supersede all previous versions of these Terms.  
   
BP may, with or without notice and in its sole discretion, terminate or suspend earnify or the Service at any time.

 

17. Intellectual Property

You acknowledge and agree that BP and/or its licensors, affiliates, partners, agents, and successors own all legal right, title and interest in and to earnify or the Service, and any software provided to you as a part of or in connection therewith, including any and all intellectual property rights that exist therein. You acknowledge that all use of earnify or the Service is subject to the terms and conditions of the earnify End User License Agreement accepted by you upon download of earnify to your device, which is incorporated herein by this reference.

 

18. Linked Destinations, Promotional Offers, and Feedback

You understand that BP may include services, materials or goods advertised, promoted, sold or otherwise made available through a third party in earnify or the Service or promote content in connection with your use of earnify.  BP does not have responsibility or liability for such advertisements or promotional offers of any third parties that may be provided.  Any dealings you have with those third party advertisers while using earnify or the Service are between you and the third party advertiser, and you agree that BP is not liable for any loss or claim that you may have against such advertiser. If we provide links or pointers to other websites or destinations, you acknowledge and agree that BP does not operate, control, or have any other connection with these other websites or destinations. Please be careful to read the terms of use and privacy policy of any other website or destination before using such website or destination and prior to you providing any confidential information or engaging in any transactions. You should not rely on these Terms to govern your use of another website or destination.  
    
Should you send any submissions, suggestions, ideas, or feedback, whether related to earnify or the Service or otherwise (“Feedback”), you acknowledge and agree that any Feedback is given voluntarily, and the BP is free to use, disclose, reproduce, license or otherwise distribute, and exploit Feedback provided to it as it sees fit, without obligation or restriction of any kind, and no consideration or acknowledgement of any sort will be provided to you Further, you hereby irrevocably and forever release and waive any claim against BP and its affiliates regarding the use of any Feedback for any purpose.

 

19. Termination

These Terms shall continue in full force and effect until terminated by us or you as provided herein. You may terminate these Terms for convenience at any time by deleting earnify from all devices that you own or control.  BP may terminate these Terms for convenience at any time upon notice to you. Notwithstanding the foregoing, with respect to you, these Terms shall terminate without any further action needing to be taken by BP upon any breach by you of these Terms.   Upon the termination of these Terms for any reason whatsoever all licenses granted hereunder shall immediately terminate and you shall immediately cease and desist from all access to and use of the earnify or the Service, and shall immediately delete earnify from all devices that you own or control.   For the avoidance of doubt, notwithstanding any termination of these Terms, you remain liable for all use of earnify or the Service through any device you own or control, including any transactions initiated through such use. The terms set forth in the following paragraphs of these Terms shall survive the termination for any reason: “INTELLECTUAL PROPERTY”; “INDEMNIFICATION”; “DISCLAIMER OF WARRANTIES”; “LIMITATION OF LIABILITY”; “CHOICE OF LAW”, “DISPUTE RESOLUTION; MANDATORY ARBITRATION; CLASS ACTION WAIVER” and “ENTIRE AGREEMENT.”

 

20. Indemnification

You agree to indemnify, defend and hold harmless BP and their subsidiaries and other affiliates, and its and their directors, officers, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other applicable third parties (collectively “Indemnified Parties”) from and against any and all claims, demands, causes of action, debt or liability, including without limitation attorney’s fees and costs incurred by the Indemnified Parties arising out of, related to, or which may arise from:

  1. your participation in earnify or the Service or any other service provided in earnify;
  2. any breach or non-compliance by you of any of these Terms;
  3. your actions or omissions; or
  4. your negligence or violation or alleged violation of any applicable law, regulations, or any rights of a third party. 

Disclaimer. EARNIFY AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  NO WARRANTY IS PROVIDED THAT THE EARNIFY PROGRAM, EARNIFY APP OR THE SERVICE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED.  YOUR USE OF EARNIFY OR THE SERVICE AND ANY OTHER MATERIAL OR SERVICES DOWNLOADED OR MADE AVAILABLE TO YOU THROUGH EARNIFY THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR INJURY RESULTING FROM THEIR USE.  
   
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BP OR ANY OF ITS CONTRACTORS OR PROVIDERS, OR ANY OF EACH OF THEIR AFFILIATES AND SUBSIDIARIES, BE LIABLE FOR ANY DAMAGES OR INJURY ARISING OUT OF THE USE OF OR INABILITY TO USE EARNIFY OR THE SERVICE , INCLUDING, BUT NOT LIMITED TO, ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED.  IN ANY CASE, THE LIABILITY OF BP OR ANY OF THE OTHER PERSONS OR ENTITIES DESCRIBED IN THE PRECEDING SENTENCE ARISING OUT OF THE USE OF OR INABILITY TO USE EARNIFY OR THE SERVICE SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF $10.00 OR THE SUM OF THE FEES PAID BY YOU FOR THE SERVICE. [NOTE:  What are the possible fees for the service?] 
   
Notice for California Users.  Under California Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, CA 95814 or by telephone at (916) 445-1254 or (800) 952-5210.

 

21. Choice of Law

These Terms are governed by and construed in accordance with the laws of the State of Illinois, excluding that body of laws pertaining to conflict of laws.  If any provision of these Terms is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable.

 

22. DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION; CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT, USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, AND DISCOVERY IS MORE LIMITED. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THESE TERMS.  
   
YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (EXCEPT JURY TRIAL WAIVER AND CLASS ACTION WAIVER) WITHIN THIRTY (30) DAYS OF ACCEPTANCE OF THESE TERMS, IF YOU FOLLOW THE PROCEDURES SET FORTH IN THIS SECTION 22. OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH BP THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.  
   
YOU AND BP AGREE TO ARBITRATE – RATHER THAN LITIGATE IN COURT – any and all claims or disputes between us (including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of BP) that are connected to, arise out of, or in any way relate to these Terms, earnify, or the Service. Notwithstanding this agreement to arbitrate, you and BP may bring appropriate claims against each other in small claims court, if the claims fall within the small claims court's jurisdiction, or before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the claims.  
   
Opt Out: You may opt out of this dispute resolution provision (except jury trial waiver and class action waiver) by notifying BP in writing of that intent within thirty (30) days after acceptance of these Terms by sending a letter stating that you are opting out of this dispute resolution provision to BP at  via U.S. mail to 30 S. Wacker Drive, Ste. 900, Chicago, IL 60606. Exercising this right, should you choose to do so, will not affect any of the terms of your agreement with BP. If you opt out of the dispute resolution provision, that opt out will remain in effect if BP modifies this section in the future.  
   
Class Action Waiver: You and BP agree that all claims or disputes between you and BP will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration. If you or BP brings a claim in small claims court, the class action waiver will apply, and neither of us can bring a claim on a class or representative basis. Furthermore, neither you nor BP may participate in a class or representative action as a class member if the class action asserts claims that would fall within the scope of this arbitration agreement if they were directly asserted by you or BP. Both parties agree that this class action waiver is an essential part of our arbitration agreement and that if this class action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 22 will not apply to any claim or dispute between you and BP, except for the provisions waiving the right to jury trial. This class action waiver may not be severed from our arbitration agreement.  
   
Arbitrator Authority: The arbitration between you and BP will be binding. In arbitration, there is no judge and no jury. Instead, our disputes will be resolved by an arbitrator, whose authority is governed by these Terms. You and BP agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to these Terms. An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the applicable law, but that injunctive or declaratory relief may not extend beyond you and your dealings with BP. Review of arbitration decisions in the courts is very limited.  
   
Arbitration Procedures: You and BP agree that these Terms affect interstate commerce and that the Federal Arbitration Act applies. All arbitrations shall be conducted by the American Arbitration Association ("AAA"). The AAA's rules are available on its website at www.adr.org or by calling 1-800-778-7879. If the claim asserted in arbitration is for less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply. If the claim asserted is for $75,000 or more, the Commercial Arbitration Rules will apply. If there is a conflict between the AAA's rules and this dispute resolution agreement, this dispute resolution agreement shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to BP via U.S. mail to 30 S. Wacker Drive, Ste. 900, Chicago, IL 60606. You must also comply with the AAA's rules regarding initiation of arbitration. BP will pay all filing fees and costs for commencement of an arbitration, but you will be responsible for your own attorneys’ fees and costs unless otherwise determined by the arbitrator pursuant to these Terms or applicable law. BP will not seek to recover its fees and costs from you in the arbitration, even if allowed under the law, unless your claim has been determined to be frivolous. If you are successful in the arbitration, BP will pay your reasonable attorneys’ fees and costs. The arbitration will be held in a mutually convenient location.  
   
Jury Trial and Class Action Waiver Where Arbitration Does Not Apply: If for any reason this arbitration agreement is found to be unenforceable, inapplicable, or if you opt out of this dispute resolution agreement, you and BP expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a judge rather than a jury will decide disputes between you and BP if, for any reason, the arbitration agreement is not enforced.  You further agree that in any claims or disputes between you and BP there will be no class, representative, or consolidated actions and neither you nor BP may participate in a class or representative action as a class member. 
   
Survival: This dispute resolution provision survives the termination of these Terms with BP. If you bring a claim against BP after termination of these Terms that is based in whole or in part on events, act or omissions that occurred while you were a BP customer, this dispute resolution provision shall apply.  
   
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23. Assignment

Except as expressly set forth herein, you may not sell, assign or transfer any Service or other benefit you receive, any other aspect of your earnify or the Service account, or any of your rights or obligations under these Terms, whether by operation of law or otherwise. We may sell, transfer, or assign the earnify or the Service account, in whole or in part, at any time, without notice to you. If we make such an assignment, the sole responsibility for the matters assigned, including any obligations to you, will lie with the party to which we make the assignment, and we will be released from any responsibilities or obligations.

 

24. Entire Agreement and Statement of Non-Reliance

These Terms together with any other terms and conditions, policies or agreements referenced herein, constitutes the sole and entire agreement between the parties concerning the subject matter hereof. You also expressly acknowledge and agree that you are not entitled to rely upon, and have not relied upon, any representation or warranty by BP that is not expressly stated in these Terms.