Taco Junkies Terms and Conditions
Last Updated 10.15.2021
Scope and Updates
Welcome to Torchy’s Tacos. The following terms, as updated from time to time (collectively, the “Terms”) govern your access to and use of all or part of www.torchystacos.com, and any other authorized websites, mobile applications, or other online services, tools or programs where these Terms appear (collectively, the “Services”). The Services are provided by Success Foods Management Group LLC d/b/a Torchy’s Tacos or one of its affiliated or subsidiary companies (collectively, or individually, as the case may be, ” Torchy’s Tacos”). By visiting or using the Services, you expressly agree to these Terms. THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER WHICH APPLY WITH RESPECT TO TORCHY’S TACOS TEXT MESSAGING PROGRAMS, EXCEPT WHERE PROHIBITED BY APPLICABLE LAW. We may change or modify these Terms from time to time and will post the updated Terms with a “Last Updated” effective date of the revision. Any changes or modifications will be effective immediately upon posting of the changes or modifications, and you waive any right you may have to receive specific notice of such changes or modifications, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes or modifications. Your continued access to, use of and/or participation in the Services after these Terms have been changed or modified (see Last Updated date above) signifies your acceptance of any updated Terms. As a result, you should frequently review these Terms to understand the terms and conditions that apply to your access to, use of and/or participation in the Services. If you do not agree to the changed or modified Terms, do not use the Services.
Use of the Services
YOU MUST BE AT LEAST 13 YEARS OF AGE TO ACCESS AND USE THE SERVICES. Some Services may require that you must be 18 or older to use the Service. The Services are not targeted toward, nor are they intended to be used by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms.
The Services are made available to provide information about Torchy’s Tacos in the United States and to provide certain marketing and other programs and services offered by Torchy’s Tacos (“Programs”). Information made available through the Services apply only to participating Torchy’s Tacos restaurants operating in the United States.
You may not use the Services: (a) in any way that is prohibited by the Terms; (b) in any way that violates any applicable law; (c) in any way that causes damage on to or through the Services; (d) in any way that infringes upon the rights of any third party; (e) in any way that is defamatory, libelous, abusive, obscene, pornographic, lewd, indecent, suggestive, harassing, threatening, inflammatory, fraudulent, involves false or misleading information, or is otherwise objectionable; (f) in any way that results in the commercial resale of Torchy’s Tacos items without the prior written consent of Torchy’s Tacos; (g) in any way that actually affects or interrupts or attempts to affect or interrupt operation, availability, reliability or stability of the Services (including without limitation using malware or viruses, attempting to bypass or break any security mechanisms or otherwise posing a security or service risk to Torchy’s Tacos or its Suppliers, evading filters, or launching or facilitating a denial of service attack on any Service); (h) to send unsolicited, unwanted or harassing communications or to harvest or otherwise collect information about individuals, or (i) to facilitate or encourage any of the foregoing.
You agree to defend, indemnify and hold Torchy’s Tacos and its Suppliers and each of their respective employees, officers, directors and insurers, harmless from and against any actual or threatened demands of any kind or nature arising out of or in connection with your violation of these Terms.
There are no fees charged by Torchy’s Tacos to use the Services, but there may be data usage or other like fees owed to your mobile carrier resulting from such use, for which you are responsible, and you are responsible for payment of any items purchased through the Services.
Torchy’s Tacos may discontinue or change specifications on products described and/or displayed through the Services from time to time without prior notice. Torchy’s Tacos reserves the right to suspend, block or terminate your access to all or any portion of the Services and/or participation in any Program without notice and in its sole discretion (including without limitation for actual or suspected fraud, unauthorized use of any Program or account or failure to comply with these Terms). Torchy’s Tacos also reserves the right to seek all other remedies available at law and in equity.
Program participants are not required to opt-in to receive text messages or marketing communications via SMS in order to participate in the Programs or as a condition of purchasing any goods or services. Participants who elect to opt-in acknowledge that Torchy’s Tacos or its designee may send them up to 5 messages per week via commercial text messages using automated technology. Participants who elect to opt-in consent and agree to that type of contact. Wireless service providers may charge participants for each text message, including any error message, that is sent and received in connection with Programs. Carriers are not liable for delayed or undelivered mobile messages. T-Mobile is not liable for delayed or undelivered messages. Participants should consult their wireless service provider’s pricing plan for details. Participants can opt out at any time. Text STOP to 34216 to cancel. Text HELP for help.
There are no fees charged by Torchy’s Tacos to use the Services, but there may be data usage or other like fees owed to your mobile carrier resulting from such use, for which you are responsible, and you are responsible for payment of any items purchased through the Services. Message and data rates may apply.
For questions please contact Taco Junkies Support by telling us how we can help you at torchys.com/contact.
Torchy’s Tacos may discontinue, or change from time to time, any Program or Service, including any Program terms, without prior notice. Please see full Program terms for each Program or Service for additional terms applicable to that Program. If you join a Program or set up an account for a Service, Torchy’s Tacos may also make account(s) for other Programs available to you. Some Program options are only available if you utilize corresponding program features. Some Programs require that you set up an account with Torchy’s Tacos. When you set up an account under any Program, you may be required to choose a user name and password or to use the email associated with your account as a username and choose a password. You may also be able to access your account(s) and/or create an account through third party authorization method(s) (for example, a social media account). You may have the ability to choose to have portions of your account information accessible by third parties (for example, in connection with your use of third party services, such as an electronic wallet). You may have the ability to interact with your account through third party services (for example, third party voice assist services or third party order processing services). The third party‘s terms and conditions apply as more fully described under Third Party Content, Products and Services (including Advertising and Promotions) below. All information provided by you must be complete and accurate. If your information changes, you should promptly update your account. If you use the same user name or email address and password for different accounts, the account information from the various Programs may be combined. If you make a change in your account information for one Program there may be an automatic corresponding change to your account information for another Program. Your Program account(s), username(s) and password(s) and Gift Card PIN number(s) are for your personal use only. You may have the ability to choose to have your credit card, Torchy’s Tacos gift card and/or other payment methods associated with your account(s). You are responsible for maintaining the confidentiality of, and are responsible for all activities that occur under, your Program , account(s), username(s) and password(s), Torchy’s Tacos Gift Cards, and any other information that may be used to access your account(s). If you believe your account(s) have been compromised, please immediately contact Torchy’s Guest Relations at [email protected] and take immediate action to remove the credit card, Torchy’s Tacos gift card and/or other payment method information associated with your account(s). Neither Torchy’s Tacos nor any Supplier is responsible for undeliverable, lost, returned or misdirected emails or other correspondence related to your account(s), or for use of your Program account(s) or reward(s), if any, issued under any Program or account(s) without your permission. Without notice to you, Torchy’s Tacos reserves the right to suspend and/or terminate your account(s) and/or your participation in any Program for any reason in its sole discretion, including without limitation if Torchy’s Tacos determines in its sole discretion that you have violated these Terms or the applicable Program terms, you have more than one account, or that the use of your account is unauthorized, deceptive, fraudulent or otherwise unlawful. Torchy’s Tacos may, in its sole discretion, suspend or cancel accounts that appear to be inactive, and suspend, cancel or combine accounts that appear to be duplicative.
The Taco Junkies Program
Becoming a Taco Junkies Member
The Taco Junkies Program allows you to earn and/or receive Reward(s) . To become a Taco Junkies member, you must: (1) Be at least 13 years old; and (2) enroll in the Taco Junkies Program at www.torchystacos.com. Your Taco Junkies membership is personal to you and may not be sold, transferred or assigned to, or shared with, family, friends or others, or used by you for any commercial purpose. You may have only one (1) Taco Junkies Program account that is personal to you. A unique and valid email address and phone number is required to register for a Taco Junkies Program account. A social media account may be required to complete actions to earn certain Rewards. Your Taco Junkies Program account number may be required to be presented in connection with a transaction or activity. The Taco Junkies Program is not targeted towards, nor intended for use by, anyone under the age of 13. There are no membership fees associated with the Taco Junkies Program.
Earning and Using Rewards
No Rewards are earned until the Taco Junkies Program account is activated. Activation of any Taco Junkies Program account is at the sole discretion of Torchy’s Tacos and requires, at a minimum, enrollment in the Program as outlined above and verification of the unique email address used in such enrollment. Rewards are issued by Torchy’s Tacos on a periodic basis and may not be identified to you in advance. Number, type and frequency of Rewards are based upon one or more factors, including without limitation the frequency of visits, the volume and type of purchases made, account usage, type of personal information provided, and type and amount of participation in and/or interaction with the Taco Junkies Program and/or activities, other Programs and/or applications. Purchases from a participating Torchy’s Tacos restaurant may be required to earn Rewards. Voluntary activities required to earn Rewards may include, among other things: (1) features that display your user name and/or status; and/or (2) contests, sweepstakes or other like activities subject to applicable rules and/or Program terms identified at the time. Certain activities may only be available to participants 18 years and older. Activities to earn Rewards do not count towards, and may not be combined with, activities described under other Programs. Activities tied to specific Rewards must be fully completed, as determined by Torchy’s Tacos in its sole discretion, and will result in a single Reward regardless of the number of times the activity is performed. Partial Rewards will not be issued. If a full Reward is not used when redeemed, no remaining balance will be refunded nor will any remaining balance be available for application toward future orders. Taco Junkies Program accounts may be used to earn purchase-based Rewards a maximum of five times per day, with a minimum of two hours between each usage. Unless otherwise identified, a Reward will consist of the single serving size of the rewarded item. Torchy’s Tacos has the sole discretion to determine the size of the Reward.
When earned, Rewards will be identified on your My Account page located at www.torchystacos.com, on your Torchy’s Tacos mobile app account page, and may also be printed on your Torchy’s Tacos restaurant receipt. Only one Reward may be redeemed per transaction. Rewards may not be redeemed in connection with catering orders. Rewards may not be redeemed for gift card purchases. The purchase of Torchy’s Tacos grocery products do not apply to the earning of any Rewards, and no Reward may be used in connection with purchases of Torchy’s Tacos grocery products. Rewards expire if not used by the applicable expiration date. Rewards are subject to change or substitution without notice. Rewards accumulated under the Taco Junkies Program are promotional and have no cash value. Rewards may not be exchanged for cash, any cash equivalent or any other products, or combined with other discounts or coupons. Rewards may be transferred if permitted by a Reward transfer program (if any) made available by Torchy’s Tacos. Transaction history cannot be transferred from one account to another. If you forgot to check-in with your unique loyalty QR code within the Torchy’s Mobile App, Torchy’s Mobile Wallet Card or Torchy’s Web App by logging into your loyalty account on TorchysTacos.com while making a purchase in a Torchy’s Tacos restaurant or online (a “visit”), you can get credit for your visit by emailing Torchy’s Guest Relations at [email protected] within 30 days of your transaction (limits apply: 1 per day, 2 per week and 4 per month.)
Other Taco Junkies Program Information
Your Taco Junkies Program membership has no cash value, is not a gift card or credit card, and is not valid if obtained from unauthorized parties, including without limitation through Internet auction sites. Notify us of a stolen Taco Junkies membership account by contacting Torchy’s Guest Relations at [email protected]. Torchy’s Tacos may conduct test Programs from time to time in certain markets that may have additional/different Program terms than those described herein. Torchy’s Tacos has no obligation to expand or continue any test. Rewards may not be earned or redeemed if unexpected technical difficulties arise.
Without notice to you, Torchy’s Tacos reserves the right to suspend any Taco Junkies membership and/or terminate your account and/or your participation in the Program for any reason in its sole discretion, including without limitation if Torchy’s Tacos determines in its sole discretion that you have violated these Terms, you have more than one account, or that the use of your account is unauthorized, deceptive, fraudulent or otherwise unlawful. Torchy’s Tacos may, in its sole discretion, suspend or cancel accounts that appear to be inactive, and suspend, cancel or combine accounts that appear to be duplicative. In the event that your participation in the Taco Junkies Program is terminated, then all accumulated Rewards in your account are void.
Dispute Resolution Related To Torchy’s Tacos Text Messaging Programs
To the maximum extent permitted by applicable law, you permanently and irrevocably waive the right to bring any claim in any forum unless you provide Torchy’s Tacos with written notice of the event or facts giving rise to the claim within one (1) year of its occurrence. Except where prohibited by applicable law, any such binding arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, shall be conducted in English, and shall be held in the State of Texas, United States. One arbitrator shall be appointed in accordance with the rules of the AAA. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. You agree that Torchy’s Tacos may seek any interim or preliminary relief from a court of competent jurisdiction in Austin, Texas, United States, necessary to protect its rights or property pending the completion of arbitration.
Fees and Costs
Limitation of Other Proceeding And Class Action Waiver.
Third Party Content, Products and Services (including Advertising and Promotions)
Torchy’s Tacos may provide third party content on the Services (including embedded content) and links to web pages and content of third parties, including Torchy’s Tacos branded and/or co-branded content and/or web pages (collectively, “Third Party Content”). We may also make our Services available to you through your use of services of third parties, such as Google, Facebook and Instagram. When you visit other sites via Third Party Content, or utilize the services of third parties, the terms and policies of the third party sites/services govern such third party site/services, including without limitation use of any of your account information that you choose to make available to such third party. It is your responsibility to determine when you are accessing Third Party Content or services. We do not control, endorse or adopt any Third Party Content or service, including the advertisements or promotions of any third party, and the inclusion of any link to and/or reference to Third Party Content or availability of Third Party service in connection with use of any Torchy’s Tacos Service does not imply Torchy’s Tacos’ endorsement, affiliation or adoption of the Third Party Content or service, and Torchy’s Tacos makes no guarantee as to its accuracy, completeness, reliability or suitability for your purposes. You agree to comply with all applicable laws, regulations and terms applicable to your use of any such third party services (for example, if you use Google voice assist services, you agree to comply with its Terms of Service. You acknowledge and agree that Torchy’s Tacos is not responsible or liable in any manner for Third Party Content or services.
Feedback and Submissions
Our Intellectual Property
TORCHY’S, TORCHY’S TACOS, the Torchy’s Tacos logo, DAMN GOOD, DAMN GOOD TACOS, TACO JUNKIE and TACO DOJO are registered trademarks and/or the property of Torchy’s Tacos. All other Torchy’s Tacos trademarks, service marks, logos, domain names, trade or company names, or indicia of origin referred to on the Services are the property of Torchy’s Tacos or its affiliates or its licensors. In countries where any of Torchy’s Tacos’s trademarks, service marks, logos, domain names, trade or company names, or indicia of origin are not registered, Torchy’s Tacos claims other rights associated with unregistered trademarks, service marks, logos, domain names, company names, or indicia of origin. Other product or company names referred to on the Services may be the trademarks of their respective owners. You may not use any trademarks, service marks, logos, domain names, company names, or indicia of origin of Torchy’s Tacos or any third party without permission from the owner of the applicable trademarks, service marks, logos, domain names, company names, or indicia of origin. Your use of the Services does not create, and nothing contained in the Services shall be construed as creating or conferring to you, by implication, estoppel, or otherwise, a license or any other rights in any intellectual property rights of Torchy’s Tacos. Non- Torchy’s Tacos-owned content may not be used without permission.
Unless otherwise indicated, the Services and all content therein including without limitation articles, text, photographs, images, illustrations, graphics, designs, information, video and audio material, and software, including the selection and arrangement thereof, are Torchy’s Tacos’s or its licensor’s proprietary property and are protected by copyright laws. You are granted a limited, non-sublicensable license to access and use the Services, and all material therein, for personal, informational and consumer transactional purposes only, including the dissemination of content to the extent specifically allowed through any provided third party functionality made available through the Services that allow you to post content from the Services to your personal social media account(s). This limited license does not include the resale, commercial use, distribution, public display or performance of the Services or any materials therein, nor does it permit the modification or the making of derivative uses of the Services of any materials therein, reverse engineering of any Service for any purpose, or the use of any data mining, spiders, robots or similar data gathering or extraction methods thereon.
Material from the Services may not be copied, distributed, republished, downloaded, uploaded or transmitted in any way without the prior written consent of Torchy’s Tacos EXCEPT that you may download one copy of the material onto one computer for your personal, non-commercial home use only, provided you do not delete or alter any copyright, trademark or other proprietary notices. Unless otherwise set forth in a written agreement between you and Torchy’s Tacos, you are granted a limited, non-exclusive right to create text hyperlinks to the Services for noncommercial purposes, provided such links do not portray Torchy’s Tacos in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking site does not contain obscene, pornographic, sexually explicit, illegal or otherwise objectionable material or damage or dilute the goodwill associated with trademarks, service marks, logos, domain names, company names, or indicia of origin of Torchy’s Tacos or any third party. In addition, the link must “point” to the URL www.torchystacos.com and not to other page(s) within the Services and the appearance, position and other attributes of the link may not create the false appearance that you, your organization or entity is sponsored by, affiliated with, or associated with Torchy’s Tacos. Torchy’s Tacos reserves the right to revoke this limited right at any time in its sole discretion.
Digital Millennium Copyright Act (“DMCA”) Notice
If you believe that any material available on or via the Services infringes a copyright you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
4501 Springdale Road
Austin, TX 78723
Tel: (512) 441-8900
Email: [email protected]
Please refer to 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If a notice of copyright infringement has been filed against material posted by you on the Services, you may make a counter-notification with our Designated Agent identified above. Please refer to 17 U.S.C. § 512(g)(3). If Torchy’s Tacos receives a valid counter-notification, it may reinstate the disabled or removed material in accordance with the DMCA. Torchy’s Tacos may terminate, in appropriate circumstances and in its sole discretion, users who are deemed to be repeat infringers and may limit access to the Services and/or terminate the accounts of any user who may infringe the intellectual property rights of others, whether or not there is any repeat infringement.
Disclaimer of Warranties and Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, AND ALL CONTENT THEREIN, AND ALL THIRD PARTY CONTENT ACCESSIBLE FROM OR THROUGH THE SERVICES, AND ALL PROGRAMS, ARE PROVIDED TO YOU “AS IS,” WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, DATA ACCURACY, SYSTEMS INTEGRATION, OR QUIET ENJOYMENT.
WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE TIMELY AND ACCURATE INFORMATION THROUGH THE SERVICES, YOU SHOULD NOT ASSUME THAT THE INFORMATION IS ALWAYS UP TO DATE OR THAT THE SERVICES CONTAIN ALL RELEVANT INFORMATION AVAILABLE. IN PARTICULAR, IF YOU ARE MAKING AN INVESTMENT DECISION REGARDING TORCHY’S TACOS, PLEASE CONSULT A NUMBER OF DIFFERENT SOURCES, INCLUDING RELEVANT FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TORCHY’S TACOS, ITS SUPPLIERS AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AND/OR AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, PROFITS, GOODWILL, DATA, CONTRACTS, USE OF MONEY, OR LOSS OR DAMAGES ARISING FROM OR CONNECTED IN ANY WAY TO BUSINESS DISRUPTION, WHETHER IN TORT, CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES OR INJURY CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM THE SERVICES OR THAT RESULTS FROM UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF ANY PROGRAM MEMBER ACCOUNT(S), MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, ACCIDENTS, VIRUSES, MISUSE OR FRAUD, DELAYS IN OPERATION, TRANSMISSION OR FAILURES OF PERFORMANCE, DELETION OF FILES OR EMAIL, UNAUTHORIZED USES OF THE SERVICES OR DATA, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO TORCHY’S TACOS’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL TORCHY’S TACOS’S AGGREGATE LIABILITY, WHETHER IN CONTRACT, WARRANTY OR TORT, (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCTS LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, EXCEED YOUR ACTUAL OR DIRECT DAMAGES, OR $100, WHICHEVER IS LESS.
Visitors Outside of the United States
Torchy’s Tacos makes no representation that the information available through the Services is appropriate or available for use outside of the United States. Those who choose to access the Services from outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws.
Governing Law and Jurisdiction
Access to and use of the Services and these Terms are governed by (i) the laws of the State of Texas, without regard to conflicts of laws principles (with respect to matters within the United States). Except as otherwise described in these Terms, and except where prohibited by applicable law, any legal action or proceeding relating to your access to or use of the Services or these Terms shall be instituted only in the federal and state courts in the State of Texas in Travis County. By accessing or using the Services, you consent to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action of proceeding, and except where prohibited by applicable law, by using, accessing or participating in the Services, you waive any claims that may arise under the laws of other countries, states, provinces, countries, territories, or jurisdictions.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not impact the validity and enforceability of the remaining provisions. If any clause or provision set forth in these Terms is determined be illegal, invalid or unenforceable under present or future law, the clause or provision shall be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions. Only a specific, written waiver of any of the provisions of these Terms, signed by an authorized representative of Torchy’s Tacos, shall have any legal effect. You may not transfer any of your rights or obligations under these Terms, in any way. All of Torchy’s Tacos’ rights and obligations under these Terms are freely assignable for any reason, including without limitation, in connection with a merger, acquisition, sale of assets, by operation of law or otherwise. Headings contained in these Terms are inserted for convenience of reference only and shall not in any way define or affect the meaning, construction or scope of any of the provisions contained in these Terms.
For More Information
If you have any questions regarding these Terms, please contact Torchy’s Guest Relations at [email protected].
© 2021 Torchy’s Tacos. All Rights Reserved.
CARDFREE END USER TERMS
1. General. Access to Torchy’s Tacos (the “Service Provider”) services via your mobile device is powered by the mobile technology and software solution owned by CardFree, Inc. (the “Licensor”) or its licensors. The Licensor is not the provider of any of the services available to you through the Software (defined below)(collectively the “Third-Party Materials”). You acknowledge and agree that the Licensor is not responsible for any of the Third-Party Materials, including their accuracy, completeness, timeliness, validity, compliance, legality, decency, quality, or any other aspects of information, products or services made available to you through the Software. You further acknowledge that orders once placed, cannot be canceled. Any returns or refunds must be handled by you and the Service Provider. Service Provider offers a 100% satisfaction guarantee or your money back. All credit card refunds will be provided as a credit to the credit card used at the time of purchase within five (5) business days upon receipt of the returned merchandise. Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. In addition, the Licensor is not responsible for any errors, mistakes or defects affecting or otherwise relating to payments and/or the earning or redemption of points.
2. Ownership. You acknowledge and agree that the Licensor (or its licensors) is the owner of all right, title and interest in and to the mobile technology solution and software made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the “Software”). By accessing the Software or using the services powered by the Software, you agree to be bound by these End User Terms (this “Agreement”), which (i) constitute your agreement with Licensor, and (ii) shall be deemed to override and supersede any conflicting or contradictory provisions set forth in any other agreement to which you are a party or otherwise binding on you.
3. License. Subject to the terms and conditions of this Agreement, you are hereby granted a personal, nonexclusive, revocable, nontransferable license to use the Software (in machine readable object code form only) in accordance with this Agreement and solely for its intended purpose. This is not a sale of the Software. All rights not expressly granted to you by this Agreement are hereby reserved by the Licensor. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance or updates to the Software. This license may be terminated at any time, for any reason or no reason, by you or the Licensor. Upon termination, (i) all rights granted to you under this Agreement will also terminate, (ii) you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or otherwise in your possession or control, and (iii) termination will not limit any of the Licensor’s rights or remedies at law or in equity.
4. Restrictions. You shall not: (i) use the Software in any manner other than for its intended purpose; (ii) use the Software in any illegal or inappropriate manner or for any illegal or inappropriate purpose; (iii) modify, revise or create any derivative works of the Software; (iv) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (v) redistribute, sell, rent, lease, sublicense, transfer rights to, or otherwise commercially exploit the Software; or (vi) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
5. Updates. The terms of this Agreement will govern any updates that replace and/or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern. The Licensor shall not, by virtue of this Agreement, be required to provide or make available to you any updates, improvements or additional modules. Notwithstanding the foregoing, Licensor may from time to time in its sole discretion develop and provide certain updates, which may include upgrades, bug fixes, patches, other error corrections and/or new features. Such updates may also modify or delete in their entirety certain features and functionality of the Software. You agree that Licensor has no obligation to provide any updates or to continue to provide or enable any particular features or functionality of the Software.
6. Consent to Use of Data. You agree that the Licensor may collect and use technical data and related user information, including but not limited to technical and personal information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software. By downloading, installing, using and providing information to or through the Software, you hereby grant us a perpetual, non-exclusive, royalty free right and license to copy, modify and use any information and data supplied by you or collected on your behalf so that we may enhance the Software and to reasonably perform under its agreement with Service Provider. The Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies. The Licensor has implemented internal privacy protections for personally identifiable information, however, you acknowledge that any personally identifiable information transmitted or disclosed online can be intercepted by others and used unlawfully. Licensor shall comply with all applicable laws and regulations; however, Licensor is not responsible to ensure that Service Provider also comply with all applicable laws and regulations.
7. Text Messages. Text messaging services, if any are offered, are provided by the Service Provider and not by Licensor. You and the Service Provider are solely responsible for the content transmitted through text messages sent between you and the Service Provider. You must provide source indication in any text messages you send (e.g. mobile telephone number, “From” field in text message, etc.) You are responsible for any text message fees charged by your wireless carrier.
8. Purchase of Alcoholic Beverages. By using Licensor’s mobile technology solution and software, you acknowledge and agree that (a) federal and state law require that the purchaser of alcoholic beverages be at least 21 years of age and alcoholic beverages may not be sold, delivered or given away to persons who are under 21 years of age, (b) you are 21 years of age or older and (c) you must be able to provide a valid form of identification to the Service Provider at the time of service. You further acknowledge and agree that the Licensor is not affiliated with the Service Provider and the Service Provider has the discretion to refuse service to anyone. Any issues in connection with your ability to purchase alcoholic beverages are solely between you and the Service Provider.
9. Export Restrictions. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will comply with all applicable United States laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to any exporting or re-exporting of the Software.
10. U.S. Government Restricted Rights. The Software is commercial computer software, as such term is defined in 48 CFR §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a): 48 CFR §227.7201 through 48 CFR §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 CFR §12.212, with respect to all other U.S. Government licensees and their contractors.
11. Disclaimer of Warranty. THE SOFTWARE IS 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, WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT OF USE OF THE SOFTWARE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERORMANCE, USAGE OR TRADE PRACTICE. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL MEET YOUR SYSTEM REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OF THE SERVICES TO BE PROVIDED ON THE SOFTWARE WITHOUT INTERRUPTION. YOU ACKNOWLEDGE THAT LICENSOR IS NOT RESPONSIBLE FOR ANY ERRORS RELATED TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION DOWNTIME, AND ANY SERVICES PROVIDED BY THE SERVICE PROVIDER. LICENSOR IS NOT RESPONSIBLE FOR THE ACTIONS OF THE SERVICE PROVIDER, INCLUDING BUT NOT LIMITED TO ITS COMPLIANCE WITH ALL APPLICABLE LAWS. YOUR USE OF THE SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney’s fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through the Software.
13. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS AFFILIATES OR LICENSORS (“LICENSOR PARTIES”) BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE 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 LICENSOR PARTIES’ LIABILITY ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
14. Miscellaneous. This Agreement constitutes the entire agreement between you and the Licensor concerning the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software. This Agreement will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement 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. All disputes relating to this Agreement are subject to the exclusive jurisdiction and venue of the Superior Court of San Francisco County or the United States District Court for the Northern District of California, and you expressly consent to jurisdiction and venue thereof and therein. This Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.