Terms and Conditions

Last Updated: March 17, 2021

FiveStar Rewards Terms and Conditions

TERMS AND CONDITIONS

IMPORTANT – READ CAREFULLY: THESE TERMS AND CONDITIONS ARE A LEGAL CONTRACT BETWEEN YOU AND FIVESTAR.  BY CLICKING TO ACCEPT OR AGREE TO THE TERMS WHEN THIS OPTION IS MADE AVAILABLE TO YOU, OR REGISTERING FOR OR USING THIS SITE OR THE FIVESTAR FANPERKS PROGRAM, WHICH WILL SERVE AS YOUR SIGNATURE, YOU AGREE TO CONDUCT TRANSACTIONS ELECTRONICALLY AND TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD EXIT THIS PAGE WITHOUT ACCEPTING AND REFRAIN FROM ALL FURTHER USE OF THIS SITE.

Agreement Between User and Newcomb Oil Co. LLC d/b/a Five Star Food Mart.  These Terms and Conditions (collectively, the “Terms”) govern your use of all mobile or desktop applications, websites and pages owned or operated by Newcomb Oil Co. LLC d/b/a Five Star Food Mart or our affiliates, as well as the FiveStar FanPerks Program if you elect to participate (individually or collectively, the “Services”).  The terms “we,” “us,” “our” and “FiveStar” refer to Newcomb Oil Co. LLC d/b/a Five Star Food Mart, a Kentucky limited liability company, and its affiliates.

Your use of the Services is conditioned upon your acceptance without modification of all of the Terms.  By accessing or using the Services in any manner, you agree to be bound by these Terms and our Privacy Policy, which can be found at https://www.fivestarfoodmart.com/privacy-policy/ and is incorporated into these Terms by reference.  Please read the Terms carefully.  If you do not accept all of the Terms, please do not use the Services or purchase products or services through the Services.

We may revise the Terms at any time by updating the Services without prior notice to you.  You will need to return to this page periodically to review the most current version of the Terms.  You can determine when these Terms were last revised by referring to the “Last Updated” line at the top.  Your continued use of the Services will be deemed to be acceptance of the updated or amended terms.  In the event that we offer any additional awards, promotions or contests, you agree that you are subject to any additional posted terms, rules or guidelines applicable to such activity, which are hereby incorporated by reference into these Terms.  We reserve the right to modify or discontinue the Services at any time without notice to you, and we will have no liability to you if we do so.

Conditions Relating to Use of the Services.  These Terms together with our Privacy Policy form legally binding agreements between you and FiveStar.  As a condition of your use of this website, you affirm that you are at least 18 years of age (or if 18 is not the age of majority where you live, have reached the age of majority there).  You agree that you are fully able and competent to enter into the terms, conditions, obligations and representations set forth in these Terms and to abide by and comply with these Terms.  You agree that: (i) you will use the Services in accordance with these Terms; (ii) all information supplied by you on the Services is true, accurate, current and complete; and (iii) you will safeguard your account information and will supervise and be completely responsible for any use of your account by you and anyone other than you.  We retain the right at our sole discretion to deny access to anyone to the Services, at any time and for any reason, including, but not limited to, for violation of these Terms.

Privacy Policy.  FiveStar’s Privacy Policy, which is incorporated herein by reference, also governs use of the Services.  Your privacy is important to us.  FiveStar’s Privacy Policy makes important disclosures about how we collect and use your information and content and how you can use the Services to share such information with others.  We encourage you to read the Privacy Policy carefully and use it to make informed decisions.

Other Terms.  If, at any time, you do not wish to accept these Terms, you may not access, link to, or use the Services.  Any terms and conditions proposed by you which are in addition to, or which conflict with, these Terms are expressly rejected by FiveStar and will be of no force or effect.  We may also revise other policies, codes or rules at any time, and the new versions will be made available on the Services.  No amendment to the Terms or Privacy Policy will apply to any dispute of which FiveStar had actual notice before the date of the amendment.

These Terms may not be amended by you except in a writing hand signed by you and an authorized representative of FiveStar.  For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.

If at any point you do not agree to any portion of the then-current version of our Terms, the Privacy Policy, or any other FiveStar policy, rules or codes of conduct, you must immediately stop using the Services.

To the extent these Terms or the Privacy Policy conflict with any other FiveStar terms, policy, rules or codes of conduct, these Terms and the Privacy Policy will govern.

Third Party Terms.  Other retailers, online merchants, third party service providers may participate in the FiveStar FanPerks Program and make available certain incentives or discounts for your use as part of the FiveStar FanPerks Program.  These participants may have their own terms and conditions and privacy policies, and you agree to comply with such terms and conditions and privacy policies.  You may view third party terms and conditions and privacy policies by visiting the participant’s websites or retail locations or by contacting the participant’s customer support department.

Use of the Services.  The following restrictions apply to the use of the Services, including any FiveStar FanPerks Program account or other account for which you may register:

a.     You agree not to create any account or access the Services if you are under the age of 18.

b.     You agree to monitor your account to restrict use by minors, and you will prevent access to children under the age of 18. You accept full responsibility for any unauthorized use of the Services by minors in connection with your account. You are responsible for any use of your credit card or other payment instrument by minors or others.

c.     You agree not to use any incomplete, false or inaccurate biographical or other information for purposes of registering as a user, creating an account or any promotion.

d.     You agree not to have more than one account at any given time, and not to create an account on behalf of someone other than yourself.

e.     You agree not to use the Services to impersonate or attempt to impersonate anyone else.

f.      You agree to use the Services only for non-commercial purposes.

g.     You agree not to use the Services to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email, spam or repetitive messages to anyone.

h.     You agree not to use the Services to engage in any illegal conduct.

i.      You agree not to sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your account to anyone without our prior written permission.

FiveStar FanPerks Program.  When you create an account as a member of the FiveStar FanPerks Program, you may collect certain rewards through your purchases of qualified products at participating locations, by displaying or swiping a FiveStar FanPerks Program card, by keying in a unique identifier, or through use of a mobile app.  These rewards may include gasoline cents per gallon awards, discounts or free merchandise.  The following terms shall apply to the FiveStar FanPerks Program in addition to all other provisions of these Terms.

a.     To enroll, you must set up an account and meet all terms for participation established by us from time to time.  Your enrollment is subject to our acceptance, and we may refuse to grant an account to you for any reason.

b.     Rewards that you accrue will be posted to your account, and you may view a summary of your account activity at www.fivestarfanperks.com.  We do not assume any liability for any failure to post rewards to your account.  You are solely responsible for checking your account regularly to ensure that your rewards have been credited and contacting us if you believe a reward has not been properly credited.

c.     To redeem rewards, you must present your FiveStar FanPerks Program card or app in a subsequent transaction at any FiveStar location.  No reward may be redeemed until it has been posted to your account.  Your reward will be applied to the transaction automatically.  Once you begin to dispense fuel using a gasoline reward, your reward will be deemed used and may not be carried over to an additional transaction.  Gasoline rewards may be redeemed up to a limit of 20 gallons of fuel.

d.     We may refuse to post or honor rewards or we may cancel them if we cannot confirm that they were properly issued or obtained.

e.     We may discontinue any reward at any time without notice.

f.      Rewards expire on the last day of the calendar month after the calendar month in which they are earned, or on such other timing as may be posted on the Services.

g.     We reserve the right to withdraw or cancel some or all of your rewards in the event that we determine in our sole discretion that you have engaged in fraud or abuse, such as patterns of returning products or cancelling services following the crediting of awards.

h.     You acknowledge that we may review and make adjustments to your account at any time without notice.  We reserve the right to determine in our sole and absolute discretion whether rewards should be posted to or removed from your account.  You acknowledge that our determinations are final and binding.  IF YOU DO NOT AGREE WITH OUR DETERMINATIONS OR DISPUTE THE REWARDS CREDITED TO YOUR ACCOUNT, YOUR SOLE REMEDY IS TO STOP PARTICIPATING IN THE FiveStar FanPerks Program.

i.      We may terminate your account at any time if you violate these Terms, commit fraud or falsify information, or take any action detrimental to the FiveStar FanPerks Program as we determine in our sole discretion.  Upon any termination or closure of your account by you or by us for any reason, you forfeit any pending, current or future rewards.

j.      REWARDS HAVE NO CASH, MONETARY OR OTHER VALUE AND MAY NOT BE CONVERTED INTO ANY CURRENCY.

Electronic Orders.  When you place an order for goods or services or carry out other transactions, you agree that:

You and we each may electronically transmit to, or receive from, the other party orders, confirmations and transaction information (collectively “Documents”) through the Services.

a.     You and we each will each use reasonably sufficient security procedures relating to all transmissions of Documents and to protect business records and data from improper access.

b.     You and we each adopt as our respective signatures your and our sender identification which is to be affixed to or contained in each Document transmitted by such party (“Signature(s)”).  You and we each agree that the Signature affixed to or contained in any transmitted Document will be sufficient to verify such party originated such Document.

c.     You and we each will use the security procedures required pursuant to these Terms to protect the confidentiality of the parties’ Signatures.

d.     Documents will not be deemed to have been properly received, and no Document will give rise to any obligation, until accessible to the receiving party on the computer used by such party for receipt of Documents hereunder.

e.     If any properly transmitted Document is received in an unintelligible or garbled form, the receiving party will, if reasonably possible, promptly notify the originating party (if identifiable from the received Document) in a reasonable manner.

f.      Any Document properly transmitted pursuant to these Terms will be considered, in connection with any transaction, to be a “writing” or “in writing.”  Any such Document when containing, or to which there is affixed, a Signature (“Signed Document”) will be deemed for all purposes to have been “signed” and to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business and the parties agree not to contest the validity or enforceability of Signed Documents under the provisions of any applicable law relating to whether certain agreements be in writing and signed by the party to be bound thereby.

Account Information.  When creating or updating any account, you may be required to provide FiveStar with certain personal information, which may include your name, birth date, e-mail address and, in some cases, payment information. This information will be held and used in accordance with our Privacy Policy and relevant notices, if any, provided in connection with information collection or use. You agree that you will supply accurate and complete information to FiveStar, and that you will update that information promptly if it changes.

Username and Password.  During any account creation process, you may be required to select a username and password (“Login Information”).  The following rules govern the security of your Login Information:

You agree not to share the account or the Login Information, let anyone else access your account, or do anything else that might jeopardize the security of your account.

g.     In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify us and modify your Login Information.

h.     You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you.

i.      You are responsible for anything that happens through your account.

FiveStar reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.

Limitations on Use.  Any use of the Services in violation of these Terms is strictly prohibited, can result in the immediate revocation of your right to use the Services, and may subject you to liability for violations of law or of these Terms.  ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICES, INCLUDING UNDERMINING OR MANIPULATING THE OPERATION OF THE SERVICES, IS A VIOLATION OF FIVESTAR POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.

Prohibitions.  You agree that you will not, under any circumstances:

Engage in any act that we deem to be in conflict with the spirit or intent of the Services, including but not limited to circumventing or manipulating these Terms or any policies;

j.      Make improper use of the Services, including by submitting false abuse reports or using profane and abusive language in your communications with our personnel; or

k.     Use the Services, intentionally or unintentionally, in connection with any violation of any law or regulation, or do anything that promotes the violation of any law or regulation.

Cheating and Hacking.  You agree that you will not, under any circumstances:

Use, create or assist in creating cheats, exploits, automation software, bots, hacks, mods or any third party software designed to modify or interfere with the Services;

l.      Without our express written consent, modify or cause to be modified any files that are a part of the Services;

m.   Disrupt, overburden or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Services; or (2) the use of the Services by any other person;

n.     Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attack or other attempt to disrupt the Services or any other person’s use or enjoyment of the Services; or

o.     Attempt to gain unauthorized access to the Services, accounts registered to others or to the computers, servers or networks connected to the Services by any means other than the user interface provided by FiveStar, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Services.

Offensive or Infringing Content.  You agree that you will not, under any circumstances:

Post any information that is likely to deceive any person, abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously or otherwise, objectionable or offensive or promotes any illegal activity;

p.     Post any information that is sexually explicit, pornographic, contains nudity, excessive violence or offensive subject matter or that contains a link to such content;

q.     Attempt to, or advocate or incite another to, defame, harass, abuse, stalk, threaten or harm, or otherwise violate the legal rights of, another person or group, including without limitation our employees and contractors; or

r.      Post any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person.

Collection and Publication of Personal Information.  You agree that you will not, under any circumstances:

Solicit, or attempt to solicit, personal information from other users of the Services;

s.      Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents or financial information through the Services; or

t.      Upload or transmit, or attempt to upload or transmit, without our express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices.

Commercial Activity.  You agree that you will not, under any circumstances:

Without our express prior written consent, use the Services or any part thereof for any commercial purpose, including but not limited to (1) communicating or facilitating any commercial advertisement or solicitation, or (2) gathering or transferring items for sale;

u.     Use the Services, or any part thereof, for performing services; or

v.     Transmit unauthorized communications through the Services, including junk mail, chain letters, spam or any materials that promote malware, spyware or downloadable items.

Unauthorized Use or Connection to the Services.  You agree that you will not, under any circumstances:

Interfere or attempt to interfere with the proper functioning of the Services or connect to or use the Services in any way not expressly permitted by these Terms;

w.    Use any unauthorized third party software that accesses, intercepts, “mines” or otherwise collects information from or through the Services or that is in transit from or to the Services, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Services to store information; we may, in our sole and absolute discretion, allow the use of certain third party user interfaces;

x.     Intercept, examine or otherwise observe any proprietary communications protocol used by a user, a server or the Services;

y.     Make any automated use of the Services, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;

z.     Bypass any measures we employ to restrict access to the Services or use any software, technology or device to send content or messages, scrape, spider or crawl the Services, or harvest or manipulate data;

aa.   Use, facilitate, create or maintain any unauthorized connection to the Services, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services; or (2) any connection using programs, tools or software not expressly approved by us in writing;

bb.  Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any software or other intellectual property used to provide the Services, or to obtain any information from the Services using any method not expressly permitted by us; or

cc.   Copy, modify or distribute rights or content from the Services, use our trademarks or use any method to copy or distribute the content of the Services, except as specifically allowed in these Terms.

Linking to the Website. You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.

Also, you must not:

  • Establish a link from any website that is not owned by you.
  • Cause the Services or portions of the Services to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
  • Link to any part of the Services other than the homepage.
  • Otherwise take any action with respect to the materials on the Services that is inconsistent with any other provision of these Terms.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any links at any time without notice in our discretion.

Suspension and Termination of Account and Use.  WITHOUT LIMITING ANY OTHER REMEDIES, FIVESTAR MAY LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE ACCOUNTS OR THE SERVICES, ACCESS TO THE SERVICES OR OUR PREMISES, OR PORTIONS THEREOF, WITH OR WITHOUT NOTICE TO YOU, IF FIVESTAR SUSPECTS THAT YOU ARE FAILING TO COMPLY WITH ANY OF THESE TERMS OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICES.

WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING OUR PREMISES OR THE SERVICES IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.  ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

FiveStar reserves the right to stop offering and/or supporting the Services or portion of the Services at any time either permanently or temporarily.  In such event, we will not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Services.

You may cancel any account registered to you at any time by following the instructions at _____________________.

Ownership.  The Services, including without limitation any computer code, software, themes, objects, photographs, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, chat transcripts, profile information and recordings are works owned or licensed by FiveStar.  FiveStar reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Services and their content.  Accordingly, the material and content available on the Services may not be copied, distributed, republished, uploaded, posted or transmitted in any way for any public or commercial purpose, except as specifically allowed under these Terms, without the prior express written consent of FiveStar.  You may not remove any copyright or other proprietary notice from FiveStar’s materials.  Modification or use of the material or content on the Services, except as expressly provided in these Terms, violates FiveStar’s or third parties’ intellectual property rights.  Neither title nor intellectual property rights are transferred to you by access to the Services.

Accounts.  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND WILL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF FIVESTAR.  GENERALLY, ACCOUNTS CREATED WITH US WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS OR AS OTHERWISE DESCRIBED HEREIN.

Submissions.  If you submit suggestions, proposals, comments or other materials (collectively “Submissions”) within the Services you understand and agree that FiveStar (a) will have no obligation to keep your Submissions confidential; (b) will have no obligation to return your Submissions or respond in any way; and (c) may use your Submissions for any purpose in any way without notice or compensation to you.

Fees and Purchase Terms.  You agree to pay all fees and applicable taxes incurred by you or anyone using an account registered to you.  FiveStar may revise the pricing for any goods and services it provides through the Services or otherwise at any time.  YOU ACKNOWLEDGE THAT FIVESTAR IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.

Third Party Advertising.  You understand that the Services may feature advertisements from FiveStar or third parties.  Our Privacy Policy addresses disclosure of information for third party advertising.

Links to Third Party Sites and Dealings with Advertisers.  FiveStar may provide links to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving something from you.  Any charges or obligations you incur in your dealings with these third parties are your responsibility.  FiveStar makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Services, and will not be liable for any claim relating to any third party content, goods and/or services.  The linked sites are not under the control of FiveStar and may collect data or solicit personal information from you.  FiveStar is not responsible for any actions or omissions by such sites, for their content, business practices or privacy policies, or for their collection, use or disclosure of any information.  Further, the inclusion of any link does not imply endorsement by FiveStar of any linked sites.  YOU AGREE THAT YOUR USE OF THIRD PARTY SITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

Disclaimers / Limitations / Waivers / Indemnification

DISCLAIMER OF WARRANTIES.  YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND OUR PRODUCTS (EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR WITH THE SERVICES OR PRODUCTS) ARE AT YOUR SOLE RISK AND ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO BE THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).

WITHOUT LIMITING THE FOREGOING, NEITHER FIVESTAR NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “FIVESTAR PARTIES”) WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

LIMITATIONS; WAIVERS OF LIABILITY.  YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OF ACTION WHATSOEVER IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE FIVESTAR PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES.

THE LIMITATIONS IN THESE TERMS APPLY WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE FIVESTAR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE FIVESTAR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE FIVESTAR PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID FIVESTAR IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.  YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID FIVESTAR ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH FIVESTAR IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.  IN ADDITION, OUR LIABILITY IN SUCH JURISDICTIONS WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

Indemnification.  You indemnify and hold FiveStar and the FiveStar Parties harmless from any claims, losses, damages and liabilities, including legal fees and expenses, arising out of your use or misuse of the Services, any violation by you of these Terms, or any breach of the representations, warranties and covenants made by you.  FiveStar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FiveStar, and you agree to cooperate with FiveStar’s defense of these claims.  FiveStar will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your account(s) or of the Services.

Dispute Resolution.  If a dispute arises between you and FiveStar, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and FiveStar agree that we will resolve any claim or controversy, at law or equity, that arises out of these Terms, the Services or our business in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution.  We may consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

Law and Forum for Legal Disputes.  These Terms and any dispute arising out of or related to them, the Services or our business will be governed in all respects by the laws of the Commonwealth of Kentucky as they apply to agreements entered into and to be performed entirely within Kentucky between Kentucky residents, without regard to conflict of law provisions.  You agree that any claim or dispute you may have against FiveStar must be resolved exclusively by a state or federal court located in Louisville, Kentucky, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below.  You agree to submit to the personal jurisdiction of the courts located within Louisville, Kentucky for the purpose of litigating all such claims or disputes.

The Services are operated out of the United States of America.  We do not represent the content or materials present in the Services are appropriate for use in other locations.  If you access the Services from a jurisdiction outside of the United States, you agree that you do so on your own initiative, and are responsible for compliance with local laws where you reside or where you access the Services, if and to the extent that such laws are applicable to your use of the Services.

Arbitration Option.  For any claim or dispute (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration.  In the event a party elects arbitration, such person will initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties.  The ADR provider and the parties must comply with the following rules: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, and the specific manner will be chosen by the party initiating the arbitration; (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator will be final and may be entered in any court of competent jurisdiction.

Improperly Filed Claims.  All claims you bring against FiveStar must be resolved in accordance with this Dispute Resolution section.  All claims filed or brought contrary to these provisions will be considered improperly filed.  Should you file a claim contrary to these provisions, FiveStar will be entitled to recover attorneys’ fees and costs up to $1000, provided that FiveStar has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

Severability.  You and FiveStar agree that if any portion of these Terms or of the FiveStar Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which will continue in full force and effect.

General Provisions

Assignment.  FiveStar may assign or delegate these Terms and/or the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms or Privacy Policy without our prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

Entire Agreement.  These Terms, any supplemental policies and any documents expressly incorporated by reference herein (including our Privacy Policy), contain the entire understanding between you and FiveStar, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Services or their use.

Language.  If we provide you with a translation of the English language version of these Terms, the Privacy Policy or any other policy (collectively “FiveStar Policies”), then you agree that the translation is provided for informational purposes only and does not modify the English language version of the FiveStar Policies.  In the event of a conflict between a translation of the FiveStar Policies and the English version, the English version of the FiveStar Policies will control.

No Waiver.  The failure of FiveStar to require or enforce strict performance by you of any provision of these Terms or the FiveStar Privacy Policy or failure to exercise any right under them will not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.  The express waiver by FiveStar of any provision, condition or requirement of these Terms or the Privacy Policy will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers or other acts or omissions by FiveStar will be deemed a modification of these Terms nor be legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of FiveStar.

Notices.  We may notify you via postings on the Services, or via e-mail or any other communications means to contact information you provide to Us.  If you are a user in the United States, all notices given by you or required from you under these Terms or the FiveStar Privacy Policy must be in writing and addressed to: Newcomb Oil Co. LLC, Attn: Legal Department, 951 Withrow Court, Bardstown, KY  40004.  You consent to receive communications from Us electronically.  You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy our legal requirements that such communications be in writing.  Any notices that you provide without compliance with this section will have no legal effect.

Equitable Remedies.  You acknowledge that the rights granted and obligations made under these Terms to FiveStar are of a unique and irreplaceable nature, the loss of which will irreparably harm FiveStar and which cannot be replaced by monetary damages alone.  Accordingly, FiveStar will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.

You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services and agree to limit your claims to claims for monetary damages, limited by these Terms (if any).

Copyright © 2020 Newcomb Oil Co., LLC.  All rights reserved.Force Majeure.  FiveStar will not be liable for any delay or failure to perform resulting from causes outside the reasonable control of FiveStar, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond our control such as acts of God, war, pandemic, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.