TERMS OF SERVICE Last Revised on December 30, 2020 Welcome to the Terms of Service (these “Terms”) for the website, https://www.cheqplease.com (the “Website”), and the related mobile application known as “CHEQ” (the “App”) operated on behalf of CHEQ, Inc. (“Company”, “we” or “us”), and together with any content, tools, features, and functionalities offered on or through our Website and the App (the “Services”).
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services. For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Please note that Section 9 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 9.
WHO MAY USE THE SERVICES
You must be 18 years of age or older and reside in the United States or any of its territories to use the Services.
2. USER ACCOUNTS
Creating and Safeguarding your Account. To use the Services, you will need to create an account (“Account”). You agree to provide us with accurate, complete, and updated information for your Account. You can access, edit, and update your Account through the App settings. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at support@CHEQ.io if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
3. RESTAURANT ORDERS
Payment. The Services permit you to place and purchase restaurant orders for pick-up or for full-service dine-in experiences (“Restaurant Orders”). You acknowledge and agree that all information you provide to complete a Restaurant Order, including, without limitation, credit card, ApplePay, GooglePay, or other payment information, is accurate, current, and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. When you place a Restaurant Order, you (a) agree to pay the total price of the Restaurant Order, and all applicable taxes and gratuities (if any) in connection with your purchase (the “Full Order Amount”), and (b) authorize us to charge your credit card or other payment method for the Full Order Amount. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, ApplePay, GooglePay or through other means that we may make available. In the event that your credit card or other payment method is declined, you are still responsible for the Full Order Amount and shall remit the Full Order Amount directly to the restaurant.
Open Tab Function. For full-service dine-in Restaurant Orders, the Services include an open tab function (“Open Tab Function”) that permits you to place an order (“Open Tab Function Order”) and then add additional items to your order throughout your dine-in experience. You may close and finalize your Open Tab Function Order by clicking “check-out” and paying the Full Order Amount of your complete Open Tab Function Order. In the event that you fail to finalize and pay an Open Tab Function Order at the end of a dine-in experience, you (a) agree to pay the Full Purchase Amount in connection with your Open Tab Function Order, including a default gratuity to the restaurant of twenty percent (20%) of the Open Tab Function Order amount, and (b) authorize us to charge your credit card or other payment method for the Full Purchase Amount (including the default gratuity) upon the earlier of (i) 3:00 AM Pacific Standard Time the following calendar day, or (ii) the time that another diner places a Restaurant Order at the same table at which you dined during your dine-in experience.
Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes”) that may be redeemed for discounts on future Restaurant Orders, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes (a) must be used in a lawful manner, (b) must be used for the intended audience and purpose, (c) may not be duplicated, sold, or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company, (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company, (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code, (f) are not valid for cash or other credits or points, and (g) may expire prior to your use.
5. RIGHTS WE GRANT YOU
License Grant. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Services (and to download a single copy of the App onto your device). This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and subject to the use restrictions described below. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service, or other actions that Company, in its sole discretion, may elect to take.
Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;
b) duplicate, decompile, reverse engineer, disassemble, or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
d) use cheats, automation software (bots), hacks, modifications (mods), or any other unauthorized third-party software designed to modify the Services;
e) exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
f) access or use the Services in any manner that could disable, overburden, damage, disrupt, or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software, or routine that causes the same;
g) attempt to gain unauthorized access to, interfere with, damage, or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
h) circumvent, remove, alter, deactivate, degrade, or thwart any technological measure or content protections of the Services;
i) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
j) introduce any viruses, trojan horses, worms, logic bombs, or other materials that are malicious or technologically harmful into our systems;
k) use the Services for illegal, harassing, unethical, or disruptive purposes;
l) violate any applicable law or regulation in connection with your access to or use of the Services; or
m) access or use the Services in any way not expressly permitted by these Terms.
Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections, and/or other equipment or services that you need to download, install, and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App will be available in, or that orders for Products can be placed from, any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails, or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging, and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from the Company. You are solely responsible for any fee, cost, or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from the Company.
Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, and other materials are protected under copyright, trademark, and other intellectual property laws. You agree that the Company and/or its licensors own all right, title, and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works.
Ownership of Trademarks. The Company’s name, “CHEQ”, the Company’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs, and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
Ownership of Feedback. We welcome feedback, comments, and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title, or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you may have in and to any and all Feedback.
7. THIRD PARTY SERVICES AND MATERIALS
Use of Third Party Materials in the Services. The Services display, include, or make available content, data, information, applications, or materials from our third party restaurant partners and other third parties (“Third Party Materials”) and/or provide links to certain third party websites, including the websites of our third party restaurant partners. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
8. DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for (a) the completeness, accuracy, availability, timeliness, security, or reliability of the Services, (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, (c) the operation or compatibility with any other application or any particular system or device, (d) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis, and (e) the deletion of, or the failure to store or transmit your communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (B) ANY DAMAGES IN EXCESS OF ONE HUNDRED DOLLARS ($100.00). SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify, and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with (a) your violation or breach of any term of these Terms or any applicable law or regulation, (b) your violation of any rights of any third party, (c) your access to or use of the Services, or (d) your negligence or wilful misconduct.
9. ARBITRATION AND CLASS ACTION WAIVER
Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed ten thousand dollars ($10,000), the Company will pay for the reasonable filing, administrative, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to Skyline Tower 10900 NE 4th Street Suite 2300, Bellevue, WA 98044, or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering your Account or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
10. ADDITIONAL PROVISIONS
Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including 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 Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
Miscellaneous. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of Washington, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Seattle, Washington. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
How to Contact Us. You may contact us regarding the Services or these Terms at: Skyline Tower 10900 NE 4th Street, Suite 2300, Bellevue, WA 98044, by phone at 838-888-CHEQ or by e-mail at support@CHEQ.io.