GENERAL TERMS AND CONDITIONS
Unless otherwise indicated, these Cumberland Farms, Inc. SmartPay Check-Link℠ and SmartPay Check-Link Business℠ Terms and Conditions and End User License Agreement ("Terms and Conditions") apply to your use of Cumberland Farms’s SmartPay Check-Link℠ and Cumberland Farms’s SmartPay Check-Link Business℠ via swipe card, mobile application or any other application (collectively, the "SmartPay Check-Link App"). The terms "we," "us" or "our" used in these Terms and Conditions refer to Cumberland Farms, Inc. and the terms "you" and "your" refer to any consumer user or business/fleet user (including the business/fleet and its drivers and employees) of the SmartPay Check-Link App. Cumberland Farms grants you a license to use the SmartPay Check-Link App and its associated software and digital content for end use only under the terms and conditions set forth in these Terms and Conditions. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SMARTPAY CHECK-LINK APP. By using the SmartPay Check-Link App, you signify your agreement to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not use the SmartPay Check-Link App.
Cumberland Farms grants to you a limited, nontransferable license to use the SmartPay Check-Link App through the card service or any other service or 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 Check-Link App, and, if you sell your mobile device, you must remove the SmartPay Check-Link 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 Check-Link 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 Check-Link App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
These Terms and Conditions constitute the entire agreement between you and Cumberland Farms and govern your use of the SmartPay Check-Link App, except for business/fleet users, who, in addition to these Terms and Conditions, are also subject to additional terms and conditions included in a separate credit application as discussed below. If any part of these Terms and Conditions is held invalid or 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.
You acknowledge that these Terms and Conditions are supported by reasonable and sufficient consideration, including your use of the SmartPay Check-Link App, and you acknowledge receiving that consideration.
USE OF CUMBERLAND FARMS SMARTPAY CHECK-LINK APP
The 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 App, the Cumberland Farms SmartPay Check-Link℠ program, or the Cumberland Farms SmartPay Check-Link Business℠ 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 or business 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 Card. You agree that you will not use any NPC materials in a manner that would infringe or violate the rights of any other party and that Cumberland Farms is not in any way responsible for any such use by you.
Note that separate or additional terms and conditions apply to services offered by National Payment Card, 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 such terms are in addition to these Terms and Conditions; in the event of a conflict, these Terms and Conditions prevail.
Use of the Cumberland Farms SmartPay Check-Link App via mobile device 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.
For business/fleet users, in order to use the SmartPay Check-Link App, the business/fleet must receive credit approval from Cumberland Farms through a separate credit application process. The credit application process includes a credit check and approval of the business/fleet, and is not a personal credit check and approval. All terms and conditions of credit for a business/fleet are governed by the terms and conditions included in your credit application, in any other documents or web pages utilized to sign up for SmartPay Check-Link Business℠ (and any other related documents or agreements provided during the credit process). Those terms and conditions on the credit application, SmartPay Check-Link Business℠ sign-up web pages and related documents are separate from, and in addition to, these Terms and Conditions. In the event of a conflict, these Terms and Conditions prevail.
The SmartPay Check-Link App and all services, functions, information, and other content ("Content") contained in the SmartPay Check-Link App are copyrighted property owned exclusively by Cumberland Farms and/or our licensors or affiliates (including, as applicable, NATIONAL PAYMENT CARD ASSOCIATION and EQUIFAX INFORMATION SERVICES, LLC). 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 Check-Link 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 Cumberlandfarms.com\SmartPay website. Except as we specifically agree in writing, neither the SmartPay Check-Link App nor any content from the SmartPay Check-Link App may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the SmartPay Check-Link App and in compliance with these Terms and Conditions. You shall not access or attempt to access the SmartPay Check-Link App or any licensor or affiliate account that you are not authorized to access. You agree not to modify the SmartPay Check-Link App in any manner or form, or to use modified versions of the SmartPay Check-Link App, for any purposes including obtaining unauthorized access to the SmartPay services or any licensor or affiliate 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 Check-Link App for or in connection with unlawful activities, or who otherwise violate these Terms and Conditions.
THE SMARTPAY CHECK-LINK 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 AND AFFILIATES (INCLUDING, AS APPLICABLE, NATIONAL PAYMENT CARD ASSOCIATION AND EQUIFAX INFORMATION SERVICES, LLC) 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 AND AFFILIATES WARRANT THAT THE SMARTPAY CHECK-LINK 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 CHECK-LINK APP OR THE STORES AND SERVERS THAT MAKE THE SMARTPAY CHECK-LINK APP AND CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER WE NOR OUR LICENSORS OR AFFILIATES 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 AND AFFILIATES WITH RESPECT TO THE FUNCTION AND CONTENT OF THE SMARTPAY CHECK-LINK APP AND RELATED SERVICES AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING ANY PERSONAL AND FINANCIAL INFORMATION). YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SMARTPAY CHECK-LINK APP IS AT YOUR SOLE RISK AND SHOULD THE SMARTPAY CHECK-LINK 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 CHECK-LINK APP, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND EACH WE AND OUR LICENSORS AND AFFILIATES 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, CREDIT AGENCIES, 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 CHECK-LINK APP OR ITS CONTENT, OR (B) THE CONDUCT OR ACTIONS OF ANY USER OF THE SMARTPAY CHECK-LINK 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 CHECK-LINK APP. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE, OUR LICENSORS OR LICENSEES OR AFFILIATES, 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 CHECK-LINK APP OR CHANGE THE SMARTPAY CHECK-LINK 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 ELSEWHERE IN THESE TERMS AND CONDITIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
JURISDICTIONAL AND VENUE ISSUES
You agree that any action at law or in equity arising out of or relating to these Terms and Conditions or the SmartPay Check-Link 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.
At any time, we may amend these Terms and Conditions (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to these Terms and Conditions, we will post such amendment or amended terms on the Cumberland Farms website at Cumberlandfarms.com\SmartPay. Such amendment will be effective immediately and incorporated into these Terms and Conditions. Your continued use of the SmartPay Check-Link App will be deemed acceptance thereof. You should review the Terms and Conditions before using the SmartPay Check-Link App.
APPLICABLE LAW, WAIVER, CONSTRUCTION
These Terms and Conditions shall be governed by and construed in accordance with the laws of the 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 Check-Link App also may be subject to other local, state, national, or international laws. We make no representation that the SmartPay Check-Link App or its Content is appropriate or available for use in any particular location. Those who choose to download the SmartPay Check-Link App do so at their own initiative and are responsible for compliance with all applicable laws. If any provision of these Terms and Conditions shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of these Terms and Conditions by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. In these Terms and Conditions, the 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 OF OR RELATED TO THESE TERMS AND CONDITIONS OR THE SMARTPAY CHECK-LINK APP MUST 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 CHECK-LINK 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 AND CONDITIONS, YOUR USE OF THE SMARTPAY CHECK-LINK APP, OR ANY ACTION TAKEN BY CUMBERLAND FARMS AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS AND CONDITIONS OR OF USE OF THE SMARTPAY CHECK-LINK APP FOR OR IN CONNECTION WITH UNLAWFUL ACTIVITIES, OR AS A RESULT OF ITS DETERMINATION THAT A VIOLATION OF THESE TERMS AND CONDITIONS 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 CHECK-LINK APP, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR UNLAWFUL ACTIVITIES, OR AS A RESULT OF CUMBERLAND FARMS’ DETERMINATION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. THIS INDEMNITY AND HOLD HARMLESS PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS AND CONDITIONS.
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 CHECK-LINK APP
You may not use or otherwise export or re-export the SmartPay Check-Link App except as authorized by United States law and the laws of the jurisdiction in which the SmartPay Check-Link App was obtained. In particular, but without limitation, the SmartPay Check-Link 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 Check-Link 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 comply with these Terms and Conditions. Upon termination of the license, you shall cease all use of the SmartPay Check-Link App and destroy all copies, full or partial, of the SmartPay Check-Link App.
ENFORCEMENT OF AGREEMENT
Cumberland Farms reserves the right to take all actions it believes are reasonably necessary or appropriate to enforce or verify compliance with any part of these Terms and Conditions. You agree that 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 these Terms and Conditions, including Cumberland Farm's right to cooperate with any legal process or third party claim relating to your use of the SmartPay Check-Link App.
MAINTENANCE AND SUPPORT
Any maintenance and support services provided by Cumberland Farms shall relate to the SmartPay Check-Link App only, unless required under applicable law. Cumberland Farms is not responsible for providing maintenance and support services with respect to your National Payment Card Account.
Collection and Use of Personal Information - Cumberland Farms SmartPay Check-Link℠
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 Card and not these Terms and Conditions. Notwithstanding the foregoing, please remember you are 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.
On-line submission of company or fleet information, including financial information, by a business or fleet for credit approval purposes is separate and distinct from the Cumberland Farms SmartPay Check-Link App. Your on-line submission of company or fleet information is subject to and governed by the terms in the on-line credit application and other registration forms, and the terms of any website through which the information is submitted, and not these Terms and Conditions.
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 Check-Link 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 or swipe card. 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 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 Check-Link 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 to enforce our Terms and Conditions or protect our operations or users. Additionally, in the event of a 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.
We take precautions, including physical, electronic and administrative procedures, to safeguard your personal information against loss, theft, and misuse, as well as unauthorized disclosure.
These Terms and Conditions are effective as of June 10, 2014.