GENERAL TERMS AND CONDITIONS AND END USER LICENSE AGREEMENT
Unless otherwise indicated, these General Terms and Conditions and End User License
Cumberland Farms SmartPay Check-Link applications (collectively, the “SmartPay App”).
Cumberland Farms grants you a license to use the SmartPay App and its associated software
and digital content for end use only under the terms and conditions set forth in these Terms of
SMARTPAY APP. By using the SmartPay App, you signify your agreement to these Terms of
Cumberland Farms grants to you a limited, nontransferable license to use the SmartPay App
on any mobile device that you own or control in accordance with the terms and conditions
established by your mobile device provider, internet service provider, or any website or
application store from which you download the SmartPhone App (the “Usage Rules”). You may
not rent, lease, lend, sell, transfer, redistribute, or sublicense the SmartPay App, and, if you sell
your mobile device, you must remove the SmartPay App before the sale. You may not copy
(except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer,
disassemble, attempt to derive the source code of, modify, or create derivative works of the
SmartPay App, any updates, or any part thereof (except and only to the extent that any foregoing
restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of
Cumberland Farms and/or its licensors or affiliates. If you breach this restriction, you may be
subject to prosecution and damages.
The terms of this license will govern any upgrades provided by Cumberland Farms that replace
or supplement the SmartPay App, unless such upgrade is accompanied by a separate license in
which case the terms of that license will govern.
unenforceable, that portion shall be construed in a manner consistent with applicable law to
reflect, as nearly as possible, the original intentions of the parties, and the remaining portions
shall remain in full force and effect.
consideration, including your use of the SmartPay App, and you acknowledge receiving that
USE OF CUMBERLAND FARMS SMARTPAY APP/YOUR PAYPAL ACCOUNT
The Cumberland Farms SmartPay App is available for use only at participating Cumberland Farms locations. We reserve the right to modify or discontinue the SmartPay program at any
time for any reason without notice. For your safety, due to fire risk, each vehicle gas purchase
requires a separate SmartPay App transaction.
The Cumberland Farms SmartPay App is provided by Cumberland Farms pursuant to a license
grant by PayPal, Inc. In order to download and use the Cumberland Farms SmartPay App, you
must have an established and valid consumer account with PayPal, Inc. ("PayPal Account"). All terms and conditions of your PayPal Account are governed by your PayPal User Agreement (and
any other related agreements) with PayPal, Inc. Cumberland Farms shall not be responsible for
any losses arising out of the unauthorized or improper use of your PayPal Account. Cumberland
Farms does not warrant and will not have any liability or responsibility for any services,
materials, products or websites provided by PayPal, Inc.
the application store or website from which you are able to download the Cumberland Farms
SmartPay App. Any such terms are posted by the party offering the service. Any such terms are
Use of the Cumberland Farms SmartPay App requires a compatible mobile device, Internet
access, and certain software (fees may apply); may require periodic updates; and may be affected
by the performance of these factors. You acknowledge that fees may apply to your receipt of
data on your mobile device and you agree to be responsible for these fees.
USE OF CUMBERLAND FARMS SMARTPAY CHECK-LINK APP
The Cumberland Farms SmartPay Check-Link App is available for use only at participating
Cumberland Farms locations. We reserve the right to modify or discontinue the SmartPay
Check-Link program at any time for any reason without notice.
For your safety, due to fire risk, each vehicle gas purchase requires a separate SmartPay Check-
Link App transaction.
The Cumberland Farms SmartPay Check-Link App is provided by Cumberland Farms in
conjunction with National Payment Card Association (“National Payment Card”). In order to
use the SmartPay Check-Link App, you must have an established and valid consumer account
with National Payment Card (“National Payment Card Account”). All terms and conditions
of your National Payment Card Account are governed by your Enrollment Agreement (and
any other related agreements) with National Payment Card. Cumberland Farms shall not be
responsible for any losses arising out of the unauthorized or improper use of your National
Payment Card Account. Cumberland Farms does not warrant and will not have any liability or
responsibility for any services, materials, products or websites provided by National Payment
or the application store or website from which you are able to download the Cumberland Farms
SmartPay Check-Link App. Any such terms are posted by the party offering the service. Any
Use of the Cumberland Farms SmartPay Check-Link App requires a compatible mobile device,
Internet access, and certain software (fees may apply); may require periodic updates; and may
be affected by the performance of these factors. You acknowledge that fees may apply to your
receipt of data on your mobile device and you agree to be responsible for these fees.
The SmartPay App and all services, functions, information, and other content ("Content")
contained in the SmartPay App are copyrighted property owned exclusively by Cumberland
Farms and/or our licensors (including, as applicable, PayPal, Inc., NATIONAL PAYMENT CARD ASSOCIATION) or affiliates. All trademarks, service marks, trade names, and trade
dress are proprietary to Cumberland Farms and/or our licensors or affiliates. We may change
the SmartPay App or delete Content or features at any time, in any way, for any or no reason.
We may give you notice that we have removed or disabled access to certain material by means
of a general notice on the Cf\SmartPay website. Except as we specifically agree in writing,
neither the SmartPay App nor any Content from the SmartPay App may be used, reproduced,
transmitted, distributed or otherwise exploited in any way other than as part of the SmartPay
SmartPay App or any LICENSOR Account that you are not authorized to access. You agree not
to modify the SmartPay App in any manner or form, or to use modified versions of the SmartPay
App, for any purposes including obtaining unauthorized access to the SmartPay services or
any LICENSOR Account. ANY VIOLATION OF THESE PROVISIONS MAY SUBJECT
YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY
DAMAGES, FOR COPYRIGHT INFRINGEMENT. In addition, Cumberland Farms has
the right to terminate the license, in appropriate circumstances, as determined by us in our
sole discretion, of users who are infringers of copyright, who use the SmartPay App for or in
THE SMARTPAY APP AND ITS FUNCTION AND CONTENT ARE PROVIDED "AS
IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT
PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE ON BEHALF OF
OURSELVES AND OUR LICENSORS (INCLUDING, AS APPLICABLE, PAYPAL,
INC., NATIONAL PAYMENT CARD ASSOCIATION) DISCLAIM ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY,
COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY AND
NONINFRINGEMENT. NEITHER WE NOR OUR LICENSORS WARRANT THAT
THE SMARTPAY APP OR ANY OF ITS FUNCTION OR CONTENT WILL BE ERROR-
FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS
WILL BE CORRECTED, OR THAT THE SMARTPAY APP OR THE STORES AND
SERVERS THAT MAKE THE SMARTPAY APP AND CONTENT AVAILABLE ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU
ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR
CORRECTION. NEITHER WE NOR OUR LICENSORS WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE DOWNLOAD OR USE OR THE RESULTS
OF THE DOWNLOAD OR USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY
WAIVE ANY CLAIM AGAINST US AND OUR LICENSORS WITH RESPECT TO THE
FUNCTION AND CONTENT OF THE SMARTPAY APP. YOU EXPRESSLY AGREE
THAT YOUR USE OF, OR INABILITY TO USE, THE SMARTPAY APP IS AT YOUR
SOLE RISK SHOULD THE SMARTPAY APP OR SERVICES PROVE DEFECTIVE,
YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR
CORRECTION. WE SHALL USE REASONABLE EFFORTS TO PROTECT
INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SMARTPAY
APP, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT
YOUR SOLE RISK, AND EACH WE AND OUR LICENSORS HEREBY DISCLAIMS
ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR DAMAGE RELATING TO
SUCH INFORMATION IN ANY WAY.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE, OUR
LICENSORS OR AFFILIATES, OR ANY OF THE FOREGOING ENTITIES'
RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR
SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING
DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT
RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, THE SMARTPAY
APP OR ITS CONTENT, OR (B) THE CONDUCT OR ACTIONS OF ANY USER OF
THE SMARTPAY APP OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES
OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100
(WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY
RELATED TO THE SMARTPAY APP. MOREOVER, UNDER NO CIRCUMSTANCES
SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING
ENTITIES' RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR
SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE
RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE
OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.
WE MAY TERMINATE YOUR FURTHER ACCESS TO THE SMARTPAY APP
OR CHANGE THE SMARTPAY APP OR DELETE ITS CONTENT OR FEATURES
IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON. THE
LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND
PERMITTED BY APPLICABLE LAW.
JURISDICTIONAL AND VENUE ISSUES
or the SmartPay App shall be filed, and that venue properly lies, only in state or federal courts
located in the borough of Manhattan, New York, New York, and you hereby consent and submit
to the personal jurisdiction of such courts for the purposes of litigating any such action.
will post such amendment or amended terms on the CF/SmartPay website. Such amendment will
using the SmartPay App.
APPLICABLE LAW, WAIVER
State of New York and the laws of the United States, without giving effect to any principles
of conflicts of law. Your use of the SmartPay App also may be subject to other local, state,
national, or international laws. We make no representation that the SmartPay App or its Content
is appropriate or available for use in any particular location. Those who choose to download
the SmartPay App do so at their own initiative and are responsible for compliance with all
shall not affect the validity and enforceability of any remaining provisions. No waiver of any
provision or any other provision, and our failure to assert any right or provision under these
word "including" is used illustratively, as if followed by the words "but not limited to."
LIMITATIONS TO ACTIONS
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT
COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES;
OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
INDEMNITY AND HOLD HARMLESS
BY USING THE SMARTPAY APP, YOU AGREE, TO THE EXTENT PERMITTED
BY LAW, TO INDEMNIFY AND HOLD CUMBERLAND FARMS, ITS DIRECTORS,
OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AGENTS,
CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT
TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS OF
USE, YOUR USE OF THE SMARTPAY APP, OR ANY ACTION TAKEN BY
CUMBERLAND FARMS AS PART OF ITS INVESTIGATION OF A SUSPECTED
FOR OR IN CONNECTION WITH UNLAWFUL ACTIVITIES, OR AS A RESULT
HAS OCCURRED. YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM
CUMBERLAND FARMS, ITS DIRECTORS, OFFICERS, SHAREHOLDERS,
EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND
LICENSORS AS A RESULT OF ITS DECISION TO WARN YOU, TO SUSPEND
OR TERMINATE YOUR ACCESS TO THE SMARTPAY APP, OR TO TAKE ANY
OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION
OR UNLAWFUL ACTIVITIES, OR AS A RESULT OF CUMBERLAND FARMS’
OCCURRED. THIS INDEMNITY AND HOLD HARMLESS PROVISION APPLIES TO
ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS OF
WAIVER OF JURY TRIAL
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT NOW
OR HEREAFTER EXISTING TO HAVE A TRIAL BY JURY IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO YOUR USE
OF THE SITE OR ANY OTHER MATTER REFERENCED HEREIN.
EXPORT OF SMARTPAY APP
You may not use or otherwise export or re-export the SmartPay App except as authorized by
United States law and the laws of the jurisdiction in which the SmartPay App was obtained. In
particular, but without limitation, the SmartPay App 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 Specially
Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity
List. By using the SmartPay App, you represent and warrant that you are not located in any such
country or on any such list.
The license is effective until terminated by you or Cumberland Farms. Your rights under this
license will terminate automatically without notice from Cumberland Farms if you fail to
SmartPay App and destroy all copies, full or partial, of the SmartPay App.
ENFORCEMENT OF AGREEMENT
Cumberland Farms reserves the right to take all actions it believes are reasonably necessary or
Cumberland Farms has the right, without liability to you, to disclose any registration information
to law enforcement authorities, government officials, and/or a third party, as Cumberland Farms
believes is reasonably necessary or appropriate to enforce or verify compliance with any part of
third party claim relating to your use of the SmartPay App.
MAINTENANCE AND SUPPORT
Any maintenance and support services provided by Cumberland Farms shall relate to the
SmartPay App only, unless required under applicable law. Cumberland Farms is not responsible
for providing maintenance and support services with respect to your PayPal or National Payment
Collection and Use of Personal Information - Cumberland Farms Smart Pay/PayPal
Personal information is data that can be used to uniquely identify or contact a single person.
We receive your email address for the purposes of sending you a receipt of your Cumberland
Farms SmartPay transaction. We also receive your name and email address in a list of daily
Cumberland Farms SmartPay transactions. Cumberland Farms does not receive or collect any
other personal information during your download or use of the Cumberland Farms SmartPay
App. If at a future time, we wish to collect and use personal information for marketing or other
purposes such as to provide and improve our products, services, content, and advertising, we will
ask your permission to do so.
When you established your account with PayPal, Inc., you provided to PayPal, Inc. certain
personal information including such information regarding your identity and finances. Your
submission of that information to PayPal, Inc. and the establishment and maintenance of your PayPal Account is separate and distinct from the Cumberland Farms SmartPay App. Cumberland
Farms does not have access to that information. Your submission of personal information to
PayPal is subject to and governed by your agreement with PayPal, Inc. and not these Terms of
Use. Notwithstanding the foregoing, please remember you are solely responsible for maintaining
the confidentiality and security of your PayPal Account, and for all activities that occur on or
through your PayPal Account.
Collection and Use of Personal Information - Cumberland Farms SmartPay Check-Link/National Payment Card
Personal information is data that can be used to uniquely identify or contact a single person.
We collect the non-financial information you provide to National Payment Card when you
enroll in Cumberland Farms SmartPay Check-Link. That information includes your name,
address, email address, date of birth, driver license number/government issued ID number,
loyalty card number, and phone numbers (home and/or mobile). The information we collect
is used in connection with providing Cumberland Farms SmartPay Check-Link services and
for marketing purposes. This includes market research, internal record keeping, improving
products or services, and sending you promotional communications such as special offers and
discounts via email, your mobile App, or other means.
Your submission of personal information to National Payment Card and the establishment
and maintenance of your National Payment Card Account is separate and distinct from the
Cumberland Farms SmartPay Check-Link App. Your submission of personal information to
National Payment Card is subject to and governed by your agreement with National Payment
solely responsible for maintaining the confidentiality and security of your National Payment
Account, and for all activities that occur on or through your National Payment Card Account.
If you do not wish to receive promotional communications from us, you may contact
us at email@example.com, or you may write to us at 100 Crossing
Boulevard, Framingham, MA 01702 attn: Marketing Department. You can also unsubscribe
to promotional emails via the opt out link in each email. If you no longer wish to use
Cumberland Farms SmartPay Check-Link, you may un-enroll through your National
Payment Card Account.
In order for the SmartPay App to function correctly, Cumberland Farms and our partners and
affiliates will collect, use, and share precise location data, including the real-time geographic
location of your mobile device. This location data is collected anonymously in a form that
does not personally identify you and is used by Cumberland Farms and its partners and
affiliates to provide the location-based SmartPay service at a participating Cumberland Farms
locations. If you are using SmartPay Check-Link, location-based data may also be used to
provide you with location based mobile coupons or other marketing incentives.
Consent to Collection and Use of Technical Data
You agree that Cumberland Farms may collect and use technical data and related information—
including but not limited to technical 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 to you (if any) related to the SmartPay App.
Cumberland Farms 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 to you.
Disclosure to Third Parties
We may be required by law, litigation, or requests from public and governmental authorities to
disclose the limited personal information we have about you. We may also disclose information
about you if we determine that for purposes of national security, law enforcement, or other issues
of public importance, disclosure is necessary or appropriate.
We may disclose information about you if we determine that disclosure is reasonably necessary
reorganization, merger, or sale we may transfer any and all personal information we collect to
the relevant third party.
We may also share the information we collect with third parties that help us market our
services and products or that provide support services to us such as administering a contest,
sweepstakes, or similar promotion. The information we share will normally be limited to
name, address and/or email address.
here regularly to ensure that you are aware of any changes. When we change the policy in a
material way, a notice will be posted on the cf\SmartPay website.
We take precautions, including physical, electronic and administrative procedures, to safeguard
your personal information against loss, theft, and misuse, as well as unauthorized disclosure.