Effective Date: October 19, 2017.
The App is currently in beta version; it is still being tested and is only available to select users who have been asked to provide feedback and comments to Southwest regarding their use of the App (“Beta Testers”). Southwest may use the Beta Testers’ feedback to improve the App before releasing a final version to the public. You understand that during this beta testing period, the App may be prone to crashing and other malfunctions that may result in the loss of data on the App. Use at your own risk. By using the App, you agree that (i) you are an authorized Beta Tester; (ii) you are at least the age of majority in the jurisdiction in which you reside; (iii) you will provide and keep accurate, current, and complete information about yourself; (iv) you are solely responsible for all activities that occur under your account– whether or not you authorized the activity; (v) you will abide by the App and Content (defined below) use restrictions set out in these Terms; (vi) you are solely responsible for maintaining the confidentiality of any username or password you provide and will not transfer or share your username or password with any third party; (vii) you will immediately notify us if your username or password is lost or stolen, of any unauthorized use of your account, or of any other breach of security; and (viii) we will not be liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
You can end your participation as a Beta Tester by deleting the App from your Device (defined below).
Content. The App contains: (i) materials and other items relating to Southwest and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the App, and the compilation, assembly, and arrangement of the materials of the App and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Southwest; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the App and the Content is the property of Southwest or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Southwest grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, play the Content on a tablet, mobile phone or other Internet-enabled mobile device (each, a “Device”) and/or print one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Southwest’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
Restrictions. If you are under the age of majority in the jurisdiction in which you reside, then you are not permitted to use the App or Content. You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the App and Content. You further agree that you will not: (i) use the App or Content for any political or commercial purpose; (ii) engage in any activity in connection with the App or Content that is unlawful, harmful, offensive, obscene, violent, threatening, harassing, abusive, or otherwise objectionable to Southwest; (iii) harvest any information from the App; (iv) reverse engineer or modify the App; (v) interfere with the proper operation of or any security measure used by the App; (vi) infringe any intellectual property or other right of any third party; (vii) use the Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.
Confidentiality. Southwest may disclose to you certain information (tangible or intangible) that you agree to treat as Confidential Information. “Confidential Information” means all information disclosed by Southwest related to the App, including, without limitation, the Content and any documents, designs, techniques, specifications, product plans, strategic information, existing or prospective business plans, existing or prospective product study or pilot test objectives and/or results. Consistent with the foregoing, Southwest may also disclose Confidential Information related to certain unreleased and experimental product features or plans. You agree to: (i) use Confidential Information only to access the App and to provide feedback and comments to Southwest regarding the App; (ii) not disclose Confidential Information to any third parties (including the sharing of unreleased/experimental product images); and (iii) use the same degree of care, but no less than a reasonable degree of care (including reasonable security measures), to prevent the unauthorized use, dissemination or publication of Confidential Information as you would use to protect your own confidential information of like nature.
No Compensation or Employment. You acknowledge that you are using the App on a purely voluntary basis, as a means of assisting, and in consideration of the opportunity to assist Southwest to use, implement, and understand various facets of the App. Southwest makes no guarantee or representation as to whether or not your feedback regarding the App will be used, and you understand and acknowledge that any Rapid Rewards® Points you receive are not compensation and Southwest will not compensate you for your use of the App. Further, you acknowledge and agree that nothing in these Terms or in your voluntary submission of feedback creates any employment relationship between you and Southwest.
Availability and Termination. Southwest may immediately suspend or terminate the availability of the App and Content, in whole or in part, to any individual user or all users, for any reason, in Southwest’ sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the App, or upon notice from Southwest, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the App. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination, including sections on App Use (except for the limited license), Submissions, Copyright Infringement and DMCA Policy, Customer Support, Third-Parties, App Features, Rapid Rewards® Points, Dispute Resolution, Disclaimer of Representations and Warranties, Limitations of Our Liability, Waiver of Injunctive or Other Equitable Relief, Indemnification, Updates to Terms, and General Provisions, will survive.
Reservation of All Rights. All rights not expressly granted to you are reserved by Southwest and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Content or the App for any purpose is prohibited.
The App may allow you to submit content to us via the App, including feedback and comments to us regarding your use of the App (“Submissions”). You grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Submissions and derivative works thereof, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You also irrevocably consent to our use and association of your name in connection with your Submissions and derivatives thereof. You agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Submissions. You agree that your Submissions will not: (i) promote any political or commercial purpose; (ii) defame, abuse, harass, stalk, or threaten others; (iii) use racially or ethnically offensive language; (iv) discuss or incite illegal activity; or (v) infringe any intellectual property or other right of any third party.
If you have any questions, please send an e-mail to us at SouthwestRD.Support@wnco.com. You acknowledge that the provision of support is at Southwest’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: Southwest Airlines Co., P.O. Box 36647-1CR, Dallas, Texas 75235 (Attention: Legal Counsel). When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Third-Party Content and Sites; Advertisements. The App may contain or may interact with third party content that is not owned, controlled or operated by Southwest (collectively, “Third-Party Services”). We may also host our content on Third-Party Services. Southwest neither endorses nor controls such Third-Party Services, and you acknowledge and agree that we are not responsible or liable for the information, content, products, or services on or available from such Third-Party Services, or for the results to be obtained from using them. If you choose to access any such Third Party Services, you do so at your own risk.
Dealings with Third Parties. Any interactions, transactions, and other dealings that you have with any third parties found on or through the App are solely between you and the third party. You hereby agree to indemnify Southwest against all claims, injury and/or damages including attorneys’ fees that arise out of your use of any Third-Party Service.
E-mail Messages. You can opt out of receiving promotional e-mails from us by following the instructions as provided in e-mails to click on the unsubscribe link or by sending an e-mail to us at SouthwestRD.Support@wnco.com with the word UNSUBSCRIBE in the subject field of the e-mail. This will not affect subsequent subscriptions and if your opt out is limited to certain types of e-mails the opt out will be so limited. We reserve the right to send you e-mails relating to your account or use of our App, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt out from receiving our promotional e-mail.
Calls. By using the App, you consent to receive ongoing calls (including by auto-dialers) from us to gather your feedback and comments regarding your use of the App. You can opt out of receiving these calls from us by sending an e-mail to us SouthwestRD.Support@wnco.com with the words STOP CALLS in the subject field of the e-mail or telling us anytime during these calls of your request to opt out. However, subsequent or different subscriptions will be unaffected by an opt out. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Contact your carrier for details.
Travel Recommendations and Estimates. Based on information you provide to us and information gathered from third parties, the App recommends certain travel services and estimates a time by which you will arrive at the departure gate. These travel recommendations and estimates are used at your own risk and may not be accurate. If you miss your flight, you will not be reimbursed.
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Southwest agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
Binding Arbitration. If any controversy, allegation, or claim relates in any way to your use of the App (collectively, “Dispute”), then you agree the Dispute shall be submitted to confidential arbitration in Dallas, Texas, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Texas. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Texas. Arbitration under these Terms shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association; these Terms shall otherwise be construed in accordance with the internal laws of the State of Texas without regard to Texas’ choice of law principles. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.
Limited Time to File Claims. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the App must be filed within one (1) year after such claim or cause of action arose or be forever banned.
Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. YOU AND SOUTHWEST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Disclaimer of Representations and Warranties
THE APP IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER SOUTHWEST NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "SOUTHWEST PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE APP YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE APP.
Limitations of Our Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE SOUTHWEST PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE APP, (B) THESE TERMS OR (C) YOUR USE OF, OR INABILITY TO ACCESS OR USE, THE APP OR ANY CONTENT AVAILABLE ON OR THROUGH THE APP, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SOUTHWEST HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE SOUTHWEST PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE APP EXCEED THE GREATER OF (A) THE AMOUNTS, IF ANY, PAID BY YOU TO SOUTHWEST FOR THE APP IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR (B) FIFTY UNITED STATES DOLLARS ($50.00). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
Waiver of Injunctive or Other Equitable Relief
YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SOUTHWEST OR A LICENSOR OF SOUTHWEST.
You agree to defend, indemnify and hold harmless Southwest from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your use of the App; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; or (vi) any misrepresentation made by you. Southwest reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Southwest’s defense of any claim. You will not in any event settle any claim without the prior written consent of Southwest.
Updates to Terms
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the App so that they are accessible via a link from the home page, and/or to send you an email to the last email address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. Your continued use of the App following the posting of revised Terms and any applicable Additional Terms shall indicate your acknowledgement of such changes and your agreement to be bound by the terms and conditions of such changes. If you object to any such changes, your sole recourse is to cease using the App.
Consent or Approval. No Southwest consent or approval may be deemed to have been granted by Southwest without being in writing and signed by an officer of Southwest. Severability; Interpretation; Assignment. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Southwest may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Southwest.
Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the App and supersede any prior agreements, representations, warranties, assurances or discussion related to the App. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Southwest in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. International Issues. Southwest controls and operates the App from the U.S.A., and Southwest makes no representation that the App is appropriate or available for use beyond the U.S.A. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the App. Software related to or made available by the App may be subject to export controls of the U.S.A, and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
Investigations; Cooperation with Law Enforcement. Southwest reserves the right to investigate and prosecute any suspected breaches of these Terms or the App. Southwest may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
California Consumer Rights and Notices. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
Terms Applicable for Apple iOS. If you are using the App through an Apple Device, the following terms apply:
(i) To the extent that you are accessing the App through an Apple Device, you acknowledge that these Terms are entered into between you and Southwest and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the App. If you downloaded our mobile app through Apple’s TestFlight, the license granted to you is subject to the TestFlight Terms and Conditions (see: http://www.apple.com/legal/internet-services/itunes/testflight/sren/terms.html).
(iii) You acknowledge that Southwest, and not Apple, is responsible for providing the App and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and Southwest, Southwest, and not Apple is responsible for addressing any claims you may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (a) product liability claims; (b) any claim that the App fails to confirm to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the App, or your possession and use of the App, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the App, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the App.