End-User Agreement For iPhone App
Last Updated: November 2014 (App ver. 1.0)
Only individuals thirteen (13) years of age or older may use the App. Users between the ages of thirteen (13) and eighteen (18) must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledge and agree to these Terms. Should User's parent or legal guardian not acknowledge and agree to these Terms, User must immediately uninstall this App and discontinue its use.
Additional Terms and Policies
These Terms incorporate and supplement the Apple, Inc. ("Apple") Terms and Conditions (available at http://www.apple.com/legal/itunes/us/terms.html#service), including without limitation the Licensed App End User Agreement therein ("Apple Terms"). In addition, these Terms also incorporate and supplement other terms, conditions, and policies of Checkers posted at checkers.com. These include, without limitation, the following items, which may be changed or updated from time-to-time. In the event of any conflict, these Terms will control but only to the extent applicable to use of the App.
Subject to these Terms, Checkers grants you a personal, non-exclusive, non-transferable, limited and revocable license to use the App for personal use only on an Apple iPhone, iPad, or iPod Touch ("iOS Device") owned or controlled by you as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms ("User License"). Any use of the App in any other manner, including, without limitation, resale, transfer, modification or distribution of the App or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the App ("Content") is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, this App unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
The license is effective until terminated by you or Checkers, with or without written notice. Your rights under the User License will terminate automatically without notice from Checkers if you fail to comply with any Terms or terms of the User License. Upon termination of the license, you shall cease all use of the App and destroy all copies, full or partial, of the App.
Checkers Digital Stored Value Program
You further agree that Checkers, its service providers and/or others involved in creating or providing the App may collect and use technical data and related information — including but not limited to technical information about your device, system and App software, and peripherals — that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the App. Checkers, its service providers, and/or others involved in creating or providing the App may use this information, as long as it is in a form that does not personally identify you, to improve the App or to provide services or technologies to you.
Your Responsibility for Your Mobile Device
You are solely responsible for (a) the confidentiality and security of User Information sent from or stored on your iOS Device by the App, (b) taking precautionary steps to protect User Information stored on your iOS Device, including without limitation password-protecting the iOS Device and employing Apple's remote-wipe feature, and (c) all transactions and activities undertaken via your device or account whether authorized by you or not. This includes any and all unauthorized purchases made from the Digital Stored Value Program feature. You agree to immediately notify Checkers of any suspected unauthorized transactions associated with the App or any other breach of security. Checkers shall not be responsible for any losses arising from loss or theft of User Information due to unauthorized or fraudulent transactions related your device.
External Services and Third-Party Materials
The App may enable access to Checkers' or third-party services and websites (collectively and individually, "External Services"). Use of the External Services requires Internet access and may require you to accept additional terms. Certain External Services may display, include or make available content, data, information, Apps or materials from third parties ("Third Party Materials") or provide links to certain third party web sites. By using the External Services, you acknowledge and agree that neither Checkers, nor its agents or those involved in creating or providing the App, is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Neither Checkers, nor its agents or those involved in creating or providing the App, warrants or endorses and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree to use the External Services at your sole risk and neither Checkers, Rallys, nor its agents or those involved in creating or providing the App, shall have any liability to you for content that may be found to be offensive, indecent, or objectionable. Checkers reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Checkers be liable for the removal of or disabling of access to any such External Services. Checkers may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
You agree that the External Services contain proprietary content, information and material that is owned by their respective owners, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services, or in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or Checkers. No portion of the External Services may be reproduced in any form or by any means, except as permitted by the respective owner of the External Services. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Checkers, nor its agents or those involved in creating or providing the App, is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services.
Use of the App is limited to the contemplated functionality. The App shall not be used in any way that does any of the following:
- Harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights).
- Is unlawful, fraudulent, or deceptive.
- Uses technology or other means to access unauthorized content or non-public spaces, including but not limited to use of "bots," "spiders," or "crawlers."
- Attempts to (a) introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (b) damage, disable, overburden, or impair Checkers servers or networks, or (c) gain unauthorized access to a Checkers computer network or user accounts.
- Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability.
- Violates these Terms in any manner.
- Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively "Acceptable Use").
Checkers reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the App, including any Digital Stored Value Account, that Checkers reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
You may generate content, written or otherwise, while using the App ("User-Generated Content"). You hereby (a) acknowledge and agree that you and you alone are responsible for your own User Generated Content, and (b) grant to Checkers and its successors a worldwide, irrevocable, transferrable, sublicensable, fully-paid, royalty-free, non-exclusive license to reproduce, display, modify, delete from, add to, adapt, publish, prepare derivative works from, and otherwise use your User-Generated Content in any way, including but not limited to product marketing campaigns.
You agree to indemnify and hold harmless Checkers, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the App, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys' fees) occurring from or related to the use or misuse of the App, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. Checkers reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
CHECKERS IS PROVIDING THE APP AND CONTENT "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED. YOU USE THE APP AT YOUR OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, CHECKERS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APP IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APP BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT INFORMATION TRANSMITTED IN CONNECTION WITH THE APP WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL CHECKERS OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT (A) BE LIABLE WITH RESPECT TO USE OF THE APP; AND/OR (B) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APP, OR DEVICE FAILURE OR MALFUNCTION. YOUR SOLE REMEDY IS TO CEASE USE OF THE APP. CHECKERS, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.
In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, in no event shall Checkers, its agents or anyone involved in creating or providing this App or Content be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by you for use of the App or $100, whichever is less.
The Checkers name, logo and other marks graphics and logos used in connection with the App are trademarks or registered trademarks of Checkers (collectively "Checkers Marks"). Other trademarks, service marks, graphics and logos used in connection with the App are the trademarks of their respective owners (collectively "Third-Party Marks"). The Checkers Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Checkers or the applicable trademark holder. The App and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Checkers or the owner of the Content.
Choice of Law, Arbitration, and Jurisdiction for Disputes
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of Checkers to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
Modification of these Terms
We will notify you of changes to these Terms by posting the amended terms in this App, or on the Checkers.com website, at least thirty (30) days before the effective date of the changes. If you have provided us with your email address or with consent to contact you via text message or other means, we will also notify you of material changes to these Terms via those means at least thirty (30) days before the effective date of the changes to the address/number you most recently provided to us. We encourage you to keep the contact information you provide to us current, and to promptly notify us of any changes, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to any changes, you should stop using the App, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at MobileCSR@checkers.com and you will not be bound by the new terms. Otherwise, the new terms will take effect after thirty (30) days.
Third Party Beneficiaries
You agree that our service providers, licensors, or others involved in creating or providing the App are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
If you have any questions regarding our privacy practices, you can email us at MobileCSR@checkers.com.