MOBILE TERMS AND CONDITIONS
PLEASE READ THESE MOBILE TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY. BY REQUESTING A COUPON MESSAGE SENT BY OR ON BEHALF OF CHECKERS DRIVE-IN RESTAURANTS, INC. UTILIZING THE BELOW SHORT CODE(S). YOU AND WE AGREE TO ABIDE BY AND BE BOUND TO THESE TERMS.
IMPORTANT NOTICE REGARDING YOUR LEGAL RIGHTS: THE SECTION BELOW TITLED “BINDING ARBITRATION” REQUIRES YOU TO ARBITRATE ANY DEMANDS YOU MAY HAVE AGAINST CHECKERS DRIVE-IN RESTAURANTS, INC., ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, VENDORS, AND SUPPLIERS AND THEIR RESPECTIVE PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND VENDORS (COLLECTIVELY, “CHECKERS” OR “US,” “WE,” OR “OUR”). THE BELOW SECTION MEANS THAT YOU CANNOT BRING ANY CLAIMS AGAINST CHECKERS IN COURT, CONFIRMS YOUR AGREEMENT TO PRIVATELY ARBITRATE ANY CLAIMS ON AN INDIVIDUAL AND NOT CLASS OR REPRESENTATIVE BASIS, AND THE BELOW SECTION AFFECTS YOUR LEGAL RIGHTS SO PLEASE READ THAT SECTION AND THESE TERMS CAREFULLY.
Coupon Message Shortcode(s): 88001
By requesting a coupon message:
• Affirm that You are at least thirteen (13) years of age;
• Consent to receive from or on behalf of Checkers Drive-In Restaurants, Inc., and its respective affiliates or vendors a single coupon message where such messages may be sent by Checkers or its vendors using automated technology to the mobile number You provided at opt-in; and
• Understand and acknowledge that Your consent to such messages is not a condition of purchase.
(hereinafter a “Coupon Message”).
Though this is a single message program, if You would like to stop receiving calls or SMS/MMS text messages and have Your number removed, please text STOP to the number from which You are currently receiving the Coupon Message to opt-out. If opting out by texting STOP to the applicable numbers(s) You will receive one additional message confirming that Your request has been processed. If You do not receive this confirmatory text message, please contact www.fishbowl.com/mobile/smshelp.html. For all other help inquiries, please text HELP to the number from which You are currently receiving the Coupon Message.
As always, message and data rates may apply for any messages sent to and by You. If You have any questions about Your text plan or data plan, it is best to contact Your wireless provider.
If You change or deactivate Your mobile number, please contact www.fishbowl.com/mobile/smshelp.html to remove Your number. Neither Checkers, its vendors, nor any mobile is liable for delayed or undelivered messages.
IMPORTANT TERMS REGARDING YOUR ABILITY TO BRING A CLAIM OR LAWSUIT
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THESE TERMS.
This provision is intended to be interpreted broadly to: (1) encompass all disputes or claims arising out of or relating to the Terms, our relationship, Your receipt of any text messages from or on behalf of Checkers, whether such dispute or claim is based in contract, tort, statute, fraud, misrepresentation or any other legal theory (including the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.) and (2) ensure any and all disputes or claims will be resolved on an individual basis through binding arbitration, except that You may take claims to small claims court if they qualify for hearing by such a court (such small claims court dispute being hereinafter an “Excluded Dispute”).
YOU AND WE BOTH WAIVE ANY CLAIMS FOR PUNITIVE DAMAGES AND ANY RIGHT TO PURSUE CLAIMS ON A CLASS OR REPRESENTATIVE BASIS, INCLUDING IN ANY EXCLUDED DISPUTE. FOR ANY DISPUTE OR CLAIM OTHER THAN AN EXCLUDED DISPUTE, YOU AND WE ALSO WAIVE THE RIGHT TO TRIAL BY JUDGE OR JURY.
You must first present any dispute or claim to Us by contacting Us in writing or by electronic mail, at the information provided in the “Contacting Us” section herein, to allow Us an opportunity to resolve the dispute or claim. You may request arbitration if Your dispute or claim cannot be resolved to Your satisfaction within sixty (60) days after presentation to Us of any dispute or claim. The arbitration of any dispute or claim shall be conducted by a sole arbitrator under the Streamlined Arbitration Rules & Procedures (“JAMS Rules”) of JAMS Inc. (“JAMS“) (or any successor to JAMS), as modified by these Terms. The JAMS Rules are available on JAMS’ website. In the event JAMS is unwilling or unable to set a hearing date within fourteen (14) days of the filing of a “Demand for Arbitration,” then either party can elect to have the arbitration administered by another mutually agreeable arbitration administration service that will hear the case. You and We agree that these Terms evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. 1, et seq. and federal arbitration law. The federal or state law that applies to these Terms will also apply during the arbitration.
Unless You and We agree otherwise, any arbitration will take place in Wilmington, Delaware and will be conducted in the English language. An arbitrator may not award relief in excess of or contrary to what these Terms provide, order consolidation or arbitration on a class-wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. In any arbitration applying the JAMS Rules applicable to large/complex cases, the arbitrators must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the JAMS Rules. Any arbitration shall be confidential, and neither You nor We may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
All administrative fees and expenses of any arbitration will be divided equally between You and Us, unless otherwise prohibited by law. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.
IF FOR ANY REASON THIS ARBITRATION CLAUSE IS DEEMED INAPPLICABLE OR INVALID, YOU AND WE BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER PUNITIVE OR EXEMPLARY DAMAGES AND ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS EITHER AS A PLAINTIFF, CLASS MEMBER, OR CLASS REPRESENTATIVE, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING. IF THIS ARBITRATION CLAUSE OR THE CLASS ACTION WAIVER SET FORTH IN THESE TERMS IS DEEMED INAPPLICABLE OR INVALID, THEN YOU HEREBY AGREE THAT ANY DISPUTE MUST BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN OR HAVING JURISDICTION OVER THE CITY OF WILMINGTON, DELAWARE AND YOU HEREBY CONSENT AND WAIVE ALL OBJECTIONS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS. However, You further agree that We retain the right to bring legal proceedings in any jurisdiction where We believe that infringement of these Terms is taking place or originating.
This agreement to arbitrate does not preclude You from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Us on Your behalf.
ADDITIONAL TERMS AND CONDITIONS
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CHECKERS EXCLUDES AND DISCLAIMS LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING IN CONNECTION WITH OR ARISING OUT OF THE USE OF OR RECEIPT OF A TEXT MESSAGE FROM OR ON BEHALF OF CHECKERS WITH WHICH IT IS LINKED, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD-PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF FORESEEABLE AND EVEN IF CHECKERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS.
YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY TEXT MESSAGE YOU RECEIVE FROM OR ON BEHALF OF CHECKERS IS TO OPT OUT, AND THE SOLE AND EXCLUSIVE MAXIMUM AGGREGATE LIABILITY TO CHECKERS FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE THE GREATER OF FIFTEEN HUNDRED DOLLARS ($1500.00) OR THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO A MOBILE PHONE CARRIER TO RECEIVE A COUPON MESSAGE. THE PRIOR LIMITATION ON DAMAGES IS NOT INTENDED TO LIMIT CHECKERS’ OBLIGATION TO PAY PREVAILING PARTY COSTS OR FEES IF RECOVERABLE PURSUANT TO APPLICABLE LAW.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF CHECKERS’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE COUPON MESSAGE OR ANY OTHER WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY CHECKERS, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF A COUPON MESSAGE OR ANY OTHER WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY CHECKERS – PROVIDED THAT NOTHING IN THESE TERMS WILL RESTRICT A CALIFORNIA RESIDENT’S RIGHT, IF ANY, TO SEEK PUBLIC INJUNCTIVE RELIEF.
BY OPTING IN TO RECEIVE A COUPON MESSAGE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
To the fullest extent permitted by applicable law, You agree to indemnify, defend, and hold harmless Checkers against all claims, losses, expenses, damages, liability, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) arising out of or related to the use of anySMS program offered by or on behalf of Checkers, violation of the Terms, violation of any right of Checkers or any other person or entity by You or any third-party using your mobile phone, VoIP account or other device to transmit or receive a SMS or MMS text message, including passwords or other security measure of any device. Checkers reserves the right, at its election to assume the exclusive defense and control of any matter subject to indemnification by You and You agree to cooperate with Checkers in connection with its defense.
Miscellaneous and Additional Terms
A. Changes to the Terms: Checkers reserves the right, in its reasonable discretion and at any time, to change or add to the terms of these Terms. If Checkers makes a material change, Checkers will provide appropriate notice to You. Your receipt of a Coupon Message after the changes take effect (or engaging in such other conduct as We may reasonably specify) constitutes your agreement and consent to the updated Terms. Therefore, You should review these Terms carefully.
B. Entire Understanding: These Terms contain the entire understanding between You and Us with respect to use of or receipt of any text message from or on behalf of Checkers and no representation, statement, inducement oral or written, not contained herein shall bind any party to this agreement.
C. Transfer & Assignment: This agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by You without the written consent of Checkers; however, Checkers may freely assign this agreement without notice to You. This agreement shall be binding upon, and inure to the benefit of the successors, representatives, and permitted assigns of the parties hereto.
D. Severability And Non-Waiver: Failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision, and a waiver of any right under these Terms on any occasion will not in any way constitute a waiver of such right or any other right on any other occasion. In the event any provision of these Terms is determined to be invalid, such invalidity will not affect the validity of the remaining portions of these Terms, and the parties will substitute for the invalid provision a provision which most closely approximates the intent and economic effect of the invalid provision unless specified otherwise herein.
E. Law & Jurisdiction: These Terms shall be subject to, governed by and construed under the laws of the State of Delaware in the United States of America, without regard to conflict of law principles. Your use of or election to receive text messages from or on behalf of Checkers may be prohibited by law in certain countries or jurisdictions, and You are responsible for compliance with any such applicable laws
F. Electronic Signatures. You agree that the electronic signatures — evidenced by provision of your mobile telephone number, zip code, specified prompted key word(s), or SMS/MMS or other text message affirmative response (e.g., Y) — are intended to authenticate agreement to the Terms and consent to receive an automated SMS/MMS or other text message and to have the same force and effect as a manual signatures.
G. Contacting Us: If You have any comments or questions, You may contact www.fishbowl.com/mobile/smshelp.html.
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