WHATABURGER ONLINE SERVICES E-SIGN DISCLOSURE AND AGREEMENT

 

Effective September 5, 2018

Version 3.0

 

Please take this opportunity to review the following disclosures and information about accessing and using the Whataburger Online Services, including the Whataburger Mobile App. If you are under the age of 13, you are not allowed to open a MyWhataburger Account or use the Whataburger Mobile App and the Whataburger Online Services.

 

E-SIGN Disclosure and Agreement for the Whataburger Online Services   

 

As part of your relationship with us, we want to ensure you have all of the information you need to effectively manage your MyWhataburger Account (as that term is defined in the Whataburger Online Services Terms and Conditions below). We are required by law to give you certain information “in writing,” which means you are entitled to receive it on paper. We may, however, provide some of this information to you electronically, instead, with your prior consent. This E-SIGN Disclosure and Agreement for the Whataburger Online Services (“E-SIGN Agreement”) describes how Whataburger communicates with you electronically, provides additional detail about the Electronic Communications (as that term is defined below) that we provide you, and sets out hardware and software requirements you need to receive these Electronic Communications. Please review this E-SIGN Agreement as it applies to Electronic Communications and will be effective until expressly withdrawn by you.

 

Applicability of Consent

 

This E-SIGN Agreement applies to your use of any Whataburger Website, mobile application, and online service or program (“Whataburger Online Services”).

 

Electronic Communications

You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Electronic Communications”) that we provide in connection with the Whataburger Online Services. Electronic Communications include, but are not limited to: (a) agreements and policies you agree to (e.g., the Whataburger Online Services Terms and Conditions and the Whataburger Privacy Policy), including updates to these documents; (b) transaction summaries, confirmations or other information; (c) MyWhataburger Account history; (d) customer service communications; and (e) promotions, offers, or coupons. We may provide these Electronic Communications to you by posting them on the Whataburger Website(s), by emailing them to you at the primary email address listed in your MyWhataburger Account, or by making them accessible in your Whataburger Mobile App. Electronic Communications will be provided online and viewable using in-app display features, browser software or .pdf files. In such cases, you will be able to print the Electronic Communication and/or have it emailed to you.

Receipt of Electronic Communications; Contact Information

Electronic Communications will be deemed received by you within 24 hours when such Electronic Communication is posted or sent to you. You agree that if Whataburger sends you an Electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive Electronic Communications, Whataburger will be deemed to have provided the Electronic Communication to you. You may not be able to transact using your MyWhataburger Account until we receive a valid, working primary email address from you. If you use a spam filter or similar software that blocks or re-routes emails from senders not listed in your email address book, we recommend that you add Whataburger to your email address book so that you can receive Electronic Communications by email.

Required Hardware and Software

 

You are responsible for maintaining all software and hardware necessary for receiving, viewing and maintaining record of the Electronic Communications. By your acceptance of this Agreement, you represent that you will maintain all hardware and software necessary to receive, view and maintain (including, but not limited to saving and/or printing) any Electronic Communications provided to you. You must have: (a) a valid email address on file with Whataburger; (b) a computer, mobile device, tablet or similar device with internet access and current browser software and computer software that is capable of receiving, accessing, displaying, and either printing or storing Electronic Communications received from us; (c) and sufficient storage space to save Electronic Communications (whether presented online, within the Whataburger Mobile App, in emails or .pdf) or the ability to print Electronic Communications. We will notify you if there are any material changes to the hardware or software needed to receive Electronic Communications from us. By giving your consent you confirm that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Electronic Communications for your records. You may print or save a copy of these Electronic Communications for your records as they may not be accessible online at a later date. 

 

You are responsible for the installation, maintenance, and operation of your computer or electronic device. We are not responsible for any errors or failures from any malfunction of your computer or electronic device, for any virus, other problems or changes that may be associated with the use of your computer or electronic device, including, for example, the cost of your Internet service provider.

 

Additional Copies

 

Additional copies of any Electronic Communication may be provided to you without charge by contacting Whataburger within 90 days of the original date of the communication. You may also request paper copies of any electronic communication within 90 days of the communication by contacting Whataburger at the address provided in Section 18.1, but Whataburger reserves the right to assess a reasonable fee for providing such paper copies.

 

Withdrawal of Electronic Acceptance of Disclosures and Notices

 

You may withdraw your consent to receive Electronic Communications by contacting Whataburger at the address provided in Section 18.1. If you fail to provide your consent to this E-SIGN Agreement, or if you withdraw your consent to receive Electronic Communications, Whataburger reserves the right to either deny your application/registration for a MyWhataburger Account, restrict or close your MyWhataburger Account, or charge you additional fees for paper copies.

 

Federal Law; Termination and Changes

 

You acknowledge and agree that your consent to Electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you and we both intend that the E-SIGN Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. We reserve the right, in our sole discretion, to discontinue the provision of your Electronic Communications, or to terminate or change the terms and conditions on which we provide Electronic Communications. We will provide you with notice of any such termination or change as required by law.

 

Consent

 

By providing your consent, you are also confirming that you have the hardware and software described above, that you are able to receive and review electronic records, and that you have an active email address for use. This consent applies to your use of the Whataburger Mobile App and Whataburger Website(s).

 

Agree or Decline

 

By clicking “I Agree” in to the Whataburger Online Services Terms and Conditions below, you are agreeing to receive disclosures electronically as stated in this E-SIGN Agreement and you are agreeing to the following Whataburger Online Services Terms and Conditions.

 

 

If you DO NOT want to consent to electronic delivery of disclosures,

PLEASE EXIT THE WHATABURGER WEBSITE OR MOBILE APP NOW.

 

If you consent to electronic delivery of disclosures and the following Whataburger Online Services Terms and Conditions, please click the “I Agree” button in the Whataburger Website or Mobile App.

 

 

WHATABURGER ONLINE SERVICES TERMS AND CONDITIONS

Effective September 5, 2018

Version 3.0

PLEASE READ THE FOLLOWING WHATABURGER ONLINE SERVICES TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY. THEY GOVERN YOUR ACCESS TO AND USE OF ANY WHATABURGER WEBSITE, MOBILE APPLICATION, AND ONLINE SERVICE OR PROGRAM (“WHATABURGER ONLINE SERVICES”). DOWNLOADING, INSTALLING, ACCESSING, OR USING THE WHATABURGER ONLINE SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS, AS THEY MAY BE AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT USE OR ACCESS THE WHATABURGER ONLINE SERVICES.

THESE TERMS ARE BETWEEN YOU AND WHATABURGER. IF YOU OPEN A MYWHATABURGER ACCOUNT OR DOWNLOAD THE WHATABURGER MOBILE APP AND YOU DO NOT MEET THE MINIMUM AGE REQUIREMENT, WHATABURGER IS NOT LIABLE FOR ANY OF YOUR SUBSEQUENT PURCHASES OR ACTIVITIES, INCLUDING, BUT NOT LIMITED TO, PURCHASE TRANSACTIONS.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS THE WHATABURGER ONLINE SERVICES. OTHERWISE, YOUR ACCESS OF THE WHATABURGER ONLINE SERVICES AND YOUR AGREEMENT TO THESE TERMS MEANS YOU HAVE ACCEPTED ALL OF THESE TERMS.

1. What These Terms Cover. These Terms are entered into between you and Whatabrands LLC and its affiliates and subsidiaries (collectively, “Whataburger,” which may be referred to as “we,” “us,” or “our”) and govern your access to and use of the Whataburger Online Services, which includes the programs, offers, content, information services, and features made available through any Whataburger website, including whataburger.com, stories.whataburger.com, and shop.whataburger.com (collectively, the “Whataburger Websites”) and the Whataburger mobile application (the “Whataburger Mobile App” or “Mobile App”). The terms “User” and “you” refer to you. You must accept these Terms before you can use the Whataburger Online Services. These Terms will be available for you to view at all times on the Whataburger Website at www.whataburger.com. Whataburger may amend these Terms at any time in accordance with Section 12 of the Terms. As between you and Whataburger, Whataburger is solely responsible for the Whataburger Online Services. Neither Apple, Inc. (Apple Store), Google, Inc. (Google Play for Android), nor any other app store or marketplace is responsible for the Whataburger Mobile App or any of its contents.

2. Services.

2.1 Description of the Online Services. Whataburger, through the Online Services, allows you to use most computers, tablets, or mobile devices to complete various functions related to: registering for and creating a MyWhataburger Account; loading of funds to your Whataburger Virtual Gift Card account (defined in Section 4.6) linked to your MyWhataburger Account; conducting mobile payment transactions using the Mobile App at participating Whataburger locations; and participating in the Whataburger Rewards Program (discussed further below). You can establish a MyWhataburger account (the “MyWhataburger Account”) and load/reload funds to your Whataburger Virtual Gift Card linked to the MyWhataburger Account using the valid payment method of your choice accepted by Whataburger. Whataburger, through the Online Services, also provides additional optional services, such as those related to the Whataburger Rewards Program, and allows you to participate in and/or receive certain promotional materials, offers, and coupons from Whataburger. The payment and optional services (collectively the “Services”) are described in further detail in these Terms, and may be amended by Whataburger in its sole discretion from time to time. Whataburger requests that you not use the Online Services or Mobile App while driving.

2.2 Nutrition Disclaimer. The Whataburger Websites or Mobile App may provide nutrition information. Percent Daily Values are based on a 2,000-calorie diet. Your daily values may be higher or lower depending on your calorie needs. Nutrient contributions from individual components may not equal the total due to federal rounding regulations. Weight for standard product is expressed as an approximate weight after cooking or “as served.” Beverage serving size reflects the amount of liquid in the beverage cup.

 

Nutrition formulations and ingredient information is based on standard product formulations obtained by our suppliers and/or third party laboratory analysis. Variations in nutritional content may occur due to changes in seasons, differences in suppliers, recipe revisions and product assembly at the restaurants. Changes to our ingredients may occur without notice resulting in changes to nutritional statements. The Whataburger Websites and Mobile App contain a feature for you to choose “lower calorie” options based upon food preparation methods, item ingredient selections, and side item selections for Whataburger meals. The “lower calorie” options do not include sauces, salad dressings, custom orders or additional condiments that you may consume. The information disclosed in ingredient statements may not identify all ingredients and may use comprehensive terms that may not sufficiently inform a person of the presence of a foodstuff that may produce an allergic reaction. Federal law has identified the eight major food allergens as: eggs, fish, milk, peanuts, shellfish, soy, tree nuts and wheat. For your convenience, menu items which contain these major allergens are identified by a corresponding allergen icon on our online menu at www.whataburger.com. Gluten and MSG are two other common sensitivities which are disclosed on our menu. While a particular menu item may not feature one of these allergens, our products may be prepared using equipment that is shared with products containing one or more of these allergens and it is possible for your menu item to come into contact with an allergen. Whataburger, its franchisees and their respective employees do not assume liability for a particular allergy or sensitivity to any food provided in our restaurants. No menu item is certified as gluten-free, vegetarian or vegan. We encourage any individual with food allergies or sensitivities to consult their physician before choosing which Whataburger menu item fits their needs. For most up to date information, please visit www.whataburger.com or call 1-800-6-BURGER. A representative from Whataburger will gladly help answer any questions you may have. 

2.3 Career Opportunities. The potential employment positions listed on the Whataburger Websites include opportunities with restaurant locations owned and operated by Whataburger (“Company Stores”) as well as restaurant locations owned and operated by Whataburger franchisees (“Franchise Stores”). The positions in Whataburger’s Company Stores may be subject to different terms and conditions, including, but not limited to, benefits and employment policies, than those positions in Franchise Stores. Whataburger does not control, direct or influence the terms and conditions of employment with Franchise Stores. Likewise, Whataburger accepts no responsibility or liability with respect to the terms and conditions of employment with Franchise Stores.

Specific information about the terms and conditions of employment associated with a particular position will be set forth upon hire. Postings on Whataburger Websites do not represent an offer of employment. Any offer of employment must be made in writing by an authorized representative of Whataburger or of a Whataburger franchisee in accordance with Whataburger’s or the Whataburger franchisee’s hiring policies and procedures. Nothing contained on any Whataburger Website alters the employment at will relationship between Whataburger or a Whataburger Franchisee and its respective employees.

3. Eligibility To Use Whataburger Online Services.

3.1 User Representations. By entering into these Terms you represent that:

(a) You are at least 13 years of age and have the right, power and authority to enter into these Terms. If you are between the ages of 13 and 18, you may only download the Mobile App, complete the MyWhataburger Account set-up process, and use the Mobile App or the Whataburger Online Services under the supervision or direction of a parent or legal guardian who agrees to be bound by these Terms. If you are under the age of 13, you are not allowed to open a MyWhataburger Account or use the Mobile App and the Online Services. 

(b) You are not located in a country that is subject to U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and that you are not listed on any U.S. government list of prohibited or restricted parties.

(c) You agree to only create one MyWhataburger Account for yourself.

(d) All information provided by you to Whataburger is correct and current, and you will update your MyWhataburger Account information with Whataburger as soon as it changes.

(e) You will maintain the security of your MyWhataburger Account by not sharing your Login Credentials (including password, PIN or any other method used to log in) with others and restricting access to your MyWhataburger Account and your computer, tablet, and mobile device.

(f) You and the transactions you enter into using your MyWhataburger Account, the Whataburger Websites and the Mobile App comply, and will continue to comply, with applicable laws and regulations.

(g) You will not use your MyWhataburger Account, the Whataburger Websites or the Mobile App in connection with any fraudulent or illegal activity or in any manner which interferes with the operation of the Whataburger Websites or Mobile App.

(h) You will use your MyWhataburger Account, the Whataburger Websites and the Mobile App only in compliance with these Terms.

(i) The account with your mobile service provider for the mobile device and the account with your internet service provider for online access, either of which you are using to access the Whataburger Online Services, is current and in good standing.

(j) You will not use your MyWhataburger Account, the Whataburger Websites or the Mobile App outside of the United States or for any transaction requiring payment in foreign currency.

(k) If you are a business entity, you are authorized to do business in the jurisdictions in which you operate, and your employees are authorized to use the Whataburger Online Services to bind you to these Terms and all transactions conducted with your user name and Login Credentials. 

(l) You will promptly notify us if you discover or otherwise suspect any security breach or security compromise relating to your MyWhataburger Account, the Whataburger Websites or the Mobile App.

(m) You will take responsibility for all activities that occur under your MyWhataburger Account and accept all risk of unauthorized access.

3.2 Device Identification Metrics. When the Whataburger Online Services are utilized through the Whataburger Website(s) or Mobile App, we may obtain and maintain certain electronic identification or log data that is automatically provided by your device including, but not limited to, the unique device identifier or mobile equipment identifier for your mobile device, Internet Protocol (IP) address, computer/mobile device operating system and browser type, type of mobile device, cookie data, cache data, and latitude and longitude of the device, if geo-location functionality has been enabled on your device (collectively, the “Device Identification Metrics”). This information is necessary as part of our ongoing efforts to detect and deter unauthorized or fraudulent use of, or abuse of, the Whataburger Online Services and MyWhataburger Accounts.

4. MyWhataburger Account Registration.

4.1 Your MyWhataburger Account. In order to obtain all of the Services provided on the Whataburger Website(s) and in the Mobile App, you must create a MyWhataburger Account. In order to use the payment function of the Mobile App at participating Whataburger locations, you must register at least one valid payment method as described in Section 4.5 below (each a “Payment Method”) in order to load/reload funds to your Whataburger Virtual Gift Card account (defined in Section 4.6 below) linked to your MyWhataburger Account and use the Mobile App for purchases at participating Whataburger locations. By registering a Payment Method with your MyWhataburger Account that is a either a credit, debit, or stored value account, or a third party mobile wallet account (such as Apple Pay® or Google Pay™) you authorize Whataburger to take appropriate steps to validate the account. You will not be required to pay for any of the Whataburger Payment Method account verification process. 

4.2 MyWhataburger Account Creation; Payment Method Account Information; Accuracy of MyWhataburger Account Information; Load and Reload of Funds to Your MyWhataburger Account. You understand that to create your MyWhataburger Account, you will be asked to provide your name and certain other personal information, which may include, but may not be limited to, first and last name, address, zip code, valid email address, and telephone number. You may also use the “Sign Up With Facebook” or “Sign Up With Google+” function to create your MyWhataburger Account. If you use “Sign Up With Facebook” or “Sign Up With Google+”, Whataburger will receive your public Facebook or Gmail profile information (including first and last name, email address, profile page information, gender and date of birth), and your current Facebook or Gmail profile picture will be included in your MyWhataburger Account. If you use the “Sign Up With Facebook” or “Sign Up With Google+” function you will not be able to unlink your social media account from your MyWhataburger Account. If you use the “Sign Up with Facebook” or “Sign Up With Google+” function you may be asked to provide additional information including, but not limited to, your email address, physical address, zip code and telephone number.     

You will have the capability to load more than one Payment Method account for loading/reloading of funds for use in your MyWhataburger Account. You understand that to add a Payment Method to your MyWhataburger Account, you will be asked to provide certain information, which may include, but may not be limited to, first and last name, billing address, zip code, CVV and expiration date. Whataburger reserves the right, at any time and in its sole discretion, to limit the number of Payment Methods that may be associated with a MyWhataburger Account. The Whataburger Mobile App also contains the ability to scan your Payment Method that is a credit card or debit card as part of the Payment Method account provisioning process. In order to use this function, Whataburger and its Third-Party Providers (defined below) will need access to your “Camera” function on your mobile device. However, the image of the Payment Method credit card or debit card will not be stored in the “Photos” section of your mobile device, nor will the image be stored by Whataburger or its Third-Party Providers.

If you only have one Payment Method account, then the default Payment Method account for loading/reloading funds will be that Payment Method account. If you have more than one Payment Method account, then the default Payment Method account for loading/reloading funds will be the first Payment Method account you enter, unless you change the default Payment Method account within your MyWhataburger Account.

If you include a Payment Method account that is a separate third-party mobile wallet, such as Apple Pay® or Google Pay™, then you understand loading/reloading of funds using those third-party mobile wallets is governed by the separate terms and conditions of that particular mobile wallet, including management of separate payment accounts loaded into those mobile wallets. For example, using Apple Pay® with the Touch ID® function to pay is governed by the separate Apple Pay® terms and conditions, and not these Terms.

When you initiate an initial load to your Whataburger Virtual Gift Card account linked to your MyWhataburger Account, we will send you an email confirming the load transaction and immediately bill your Payment Method account for the transaction amount you have selected. The initial load transaction will appear on your Payment Method account statement as “Whataburger Digital Sale” or “Whataburger Mobile Sale.”  

Whataburger will impose limits, in its sole discretion, on the number of loads/reloads per day and the amount of funds that you may load/reload into your Whataburger Virtual Gift Card account linked to your MyWhataburger Account. You may also use the MyWhataburger Account automatic reload function by setting the default Payment Method account for automatic reloads, and setting either the reload data or the MyWhataburger Account balance amount that will trigger an automatic funds reload transaction. We will send you an email notifying you when the automatic reload function has been turned on. We will also send you an email confirming each automatic reload transaction and bill your Payment Method account according to the reload schedule and reload transaction amount you have selected. We will send you an email confirmation after each reload transaction to let you know your MyWhataburger Account has been reloaded. Each reload transaction will appear on your Payment Method account statement as “Whataburger Digital Sale” or “Whataburger Mobile Sale.” You can change your automatic reload preferences or de-activate the automatic reload feature at any time. To stop the automatic reload feature, you must log into your MyWhataburger Account and turn off the automatic reload feature. We will send you an email notifying you when the automatic reload function has been turned off. Your selection of the automatic reload function constitutes your ongoing authorization for recurring transactions using your Payment Method selected for automatic reload until you stop such automatic reload feature. Once the dollar value is loaded to your MyWhataburger Account, the transaction cannot be reversed. 

You certify that all information you provide, including Payment Method account information, is accurate and complete. You agree to keep your information current by updating it as needed in your MyWhataburger Account or any other account you maintain with Whataburger. You cannot update the email address associated with your MyWhataburger Account on the Whataburger Websites or in the Mobile App. If you need to update the email address listed in your MyWhataburger Account, you must contact Whataburger Customer Care in one of the following ways:

            Email: resolution@wbhq.com

            Telephone: 1-800-6-BURGER

            Physical mail:             Whataburger

                                                300 Concord Plaza Dr.

                                                San Antonio, TX 78216

                                                ATTN: Whataburger Customer Care

Whataburger reserves the right to suspend or terminate your MyWhataburger Account, in Whataburger’s sole discretion, in the event you provide inaccurate, false, or incomplete information, or fail to comply with the MyWhataburger Account registration requirements.

4.3 Privacy Policy and Additional Mobile App Privacy Terms. The information you provide to Whataburger, including your personal information, is subject to the terms of Whataburger’s Privacy Policy, which is available at www.whataburger.com. By entering into these Terms, you represent that you have read, understood and accepted Whataburger’s Privacy Policy. We do not respond to web browser “do not track” signals at this time. We await the result of work by the policy community and industry to determine when such a response is appropriate and what form it should take. If you use certain functions within the Mobile App that rely on geo-location functionality, please be advised that Whataburger or its Third-Party Providers may monitor and track your mobile device’s geo-location in order to deliver such functionality. For example, if you use the “Locations” function and want to find the Whataburger location nearest to your current location, Whataburger and its Third-Party Providers will monitor your geo-location to deliver that information to you. Please also note that some functionality within the Whataburger Websites or Mobile App may not be available or may not fully function if you turn off geo-location services. For example, without geo-location services turned on, Whataburger will not be able to determine the closest Whataburger location to you.

Whataburger may make personalized marketing messages, ads or offers to you through any medium, including social media, based upon: (a) your interaction with the Mobile App, our Websites, content, or Online Services; (b) information from activities such as your purchase and transaction history, including information about you gathered through Whataburger Rewards; and (c) notifications, ads, offers or new Whataburger location announcements or Whataburger events based upon geo-location data collected from your mobile device through the Mobile App. Such information allows us to provide you with more useful and relevant notifications, ads, offers or announcements. We do not sell your personal information to unaffiliated third parties, but we do provide information to third parties, including the Third-Party Providers, for the delivery of notifications, ads, offers or announcements. Also, some third parties may provide us information about you from offline and online sources that we may use to provide you more relevant and useful notifications, ads, offers or announcements.

Whataburger respects your privacy and you can opt out from receiving personalized marketing messages, ads and offers. However, the opt-out will apply only to the specific channel, browser or device from which you opt out. You will need to opt out separately from each channel (e.g., email, push notifications) and on all of your browsers and devices. Note that some Third-Party Providers may also make their own opt-out process available. Please note that for some channels, even if you choose to opt-out of receiving targeted advertising, you may still receive advertising about Whataburger – it just will not be tailored to your interests.

4.4 Login Credentials.

(a) Upon creating your MyWhataburger Account, you must establish a username and password (your “MyWhataburger Account Login Credentials”). If you create your MyWhataburger Account using the “Sign Up With Facebook” or “Sign Up With Google+” option, then your Login Credentials will be the username you establish for the MyWhataburger Account and your Facebook or Google+/Gmail password. You are solely responsible for safeguarding your MyWhataburger Account Login Credentials. You may choose to add a Whataburger Mobile App PIN at any time by visiting the “Settings” portion of the Mobile App. Whataburger also strongly encourages you to have a separate computer, tablet or mobile device authentication method, such as a password, passcode or fingerprint or facial authentication method (for example using Apple’s Touch ID® or Face ID® functions) necessary to unlock your computer, tablet or mobile device, as recommended by computer, tablet and mobile device manufacturers. 

(b) When you use your MyWhataburger Account to make a payment transaction at a participating Whataburger location, you must enter the MyWhataburger Account Login Credential(s) required to initiate and approve such payment transaction. You are responsible for all activity that occurs under or in association with your MyWhataburger Account, including unauthorized payment transactions that result from your failure to safeguard your MyWhataburger Account Login Credential(s) required for payment transactions, or activity that occurs due to your failure to utilize either a Whataburger Mobile App PIN or computer, tablet or mobile device password or passcode.

(c) Please be advised that once you have logged into your MyWhataburger Account, you will remain logged in until your Login Credentials expire or you actively log out. While logged in, your MyWhataburger Account may be used to conduct all activities offered in the MyWhataburger Account, including conducting payment transactions. Whataburger strongly encourages you to use a Whataburger Mobile App PIN, mobile device passcode or fingerprint or facial authentication if available to minimize the possibility of another individual using your computer or mobile device and your MyWhataburger Account to conduct payment transactions.

4.5 Accepted Payment Methods. You may register and provision any valid credit, debit, or stored value account, or third-party mobile wallet account, accepted by Whataburger (each, a “Payment Method”) into your MyWhataburger Account. However, you should be aware that only certain Payment Methods are accepted by Whataburger, and you may not be able to provision some of your existing Payment Methods into your MyWhataburger Account. For a list of accepted Payment Methods visit the Whataburger Website at www.whataburger.com. Whataburger may, at any time, change or update the list of Payment Methods that you may provision to your MyWhataburger Account. Whataburger is not a bank and does not offer banking services as defined by the United States Department of Treasury and under applicable law. Whataburger also does not offer money service business services as defined by the United States Department of Treasury or money transmission services as defined under various state laws. Whataburger will comply with all applicable law with regard to its Online Services. Whataburger is not responsible for the processing of any payment you initiate through use of your MyWhataburger Account. You may add or remove a Payment Method from your MyWhataburger Account at any time by visiting the “Manage Payment” portion of the MyWhataburger Account.  

4.6 Gift Cards. Whataburger may allow you to purchase virtual Whataburger gift cards (“Whataburger Virtual Gift Cards” or “Virtual Gift Cards”) through your MyWhataburger Account. Whataburger may also allow you to transfer funds from physical Whataburger gift cards you purchase (“Whataburger Physical Gift Cards” or “Physical Gift Cards”) to your MyWhataburger Account. Once you transfer funds from a Physical Gift Card to your MyWhataburger Account, that Physical Gift Card is void. Using your selected Payment Method, you can load/reload a dollar value onto your Virtual Gift Card. The Virtual Gift Card can be used as a Payment Method for Online Ordering and at participating Whataburger locations through your Mobile App or third party mobile wallet functionality. The dollar value that you load onto your Virtual Gift Card is a prepayment for the goods and services you purchase at participating Whataburger locations. Unless otherwise required by law or permitted by these Terms, the dollar value of your Virtual Gift Card is nonrefundable and may not be redeemed for cash. In the event you close your MyWhataburger Account, must follow the provisions of Section 4.8 below. The value on your Virtual Gift Card is not insured by the Federal Deposit Insurance Corporation (“FDIC”) and does not earn interest.

You may not have more than $220.00 in value on any of your Virtual Gift Cards at any time, and no more than $220.00 may be associated with any one Virtual Gift Card in a single day. This means that the activity on any one of your Virtual Gift Cards cannot exceed $220.00 over the course of a day. The total value you may load onto all of your Virtual and Physical Gift Cards, together with the value of any new Virtual or Physical Gift Card that you may purchase, may not exceed $2,000.00 on any given day. Whataburger does not charge any activation, service, dormancy, or inactivity fees in connection with your Virtual or Physical Gift Card. Your Virtual Gift Card has no expiration date and the value associated with your Virtual Gift Card does not expire.

4.7 Authorization to Charge Payment Method Account and MyWhataburger Account. By registering a Payment Method with your MyWhataburger Account for load/reload of funds to the Whataburger Virtual Gift Card linked to your MyWhataburger Account, you authorize Whataburger to charge to your Payment Method when you authorize such load/reload transactions. By using your Whataburger Virtual Gift Card in Online Ordering or at a participating Whataburger location for payment, you authorize Whataburger to charge such transactions to your Whataburger Virtual Gift Card linked to your MyWhataburger Account.

4.8 Termination or Suspension of Your MyWhataburger Account. In the event that either you or Whataburger terminates, cancels, or suspends your MyWhataburger Account, you will no longer be able to utilize your MyWhataburger Account on the Whataburger Websites or in the Mobile App. If you have any remaining funds loaded to the Whataburger Virtual Gift Card linked to your MyWhataburger Account, please contact us in one of the following ways to discuss your options, including transferring any remaining funds to a new MyWhataburger Account:

Email: resolution@wbhq.com

Telephone: 1-800-6-BURGER

Physical mail:             Whataburger

                                    300 Concord Plaza Dr.

                                    San Antonio, TX 78216

                                    ATTN: Whataburger Customer Care

4.9 Illegal or Unauthorized Use of Your MyWhataburger Account; Lost or Stolen Computer, Tablet or Mobile Device. Whataburger reserves the right, without liability, to suspend your MyWhataburger Account and prevent you from using the Online Services and Mobile App in the event Whataburger believes a transaction has been made in violation of these Terms, is fraudulent or unauthorized, or has been made for criminal purposes. If Whataburger believes, in its sole discretion, that your MyWhataburger Account has been used for unauthorized, illegal or criminal proposes, whether by you or by some other party, you give Whataburger express authorization to: (a) share information related to use of your MyWhataburger Account, including transaction information and your personal information; (b) take necessary steps to detect or respond to instances of potential or actual fraud or other illegal activities; (c) respond to a law enforcement agency’s request for information or cooperation in an investigation; or (d) respond to judicial process or other valid government investigation process. In the event that your computer, tablet or mobile device is lost or stolen, you must immediately contact the issuing bank for all Payment Method cards or accounts you entered into your MyWhataburger Account for loading/reloading of funds (including any accounts included in any third-party mobile wallet you are using) in order to prevent unauthorized transactions. In addition, you should also contact Whataburger directly to inform us that your computer, tablet or mobile device was lost or stolen and instructing us to deactivate your MyWhataburger Account. Such My Whataburger Account deactivation may take several days for us to implement, which is why you should contact the issuing bank(s) for your Payment Method(s) first. If you instruct us to deactivate your MyWhataburger Account due to your computer, tablet or mobile device being lost or stolen, and you have funds remaining on your Whataburger Virtual Gift Card associated with your MyWhataburger Account, you must follow the provisions of Section 4.8 of these Terms.

5. Whataburger Mobile App.

5.1 Mobile App and Software. The Whataburger Online Services may be utilized through the Mobile App, which may be downloaded and installed onto your mobile device. Upon downloading the Mobile App to your mobile device, you will have the option to create a MyWhataburger Account. You may create a MyWhataburger Account according to Section 4 above. If you already have a MyWhataburger Account, you must log-in using your Login Credentials to use the Online Services. You agree that you will download and install any software updates for the Mobile App as they become available, and Whataburger is not responsible for any functionality errors or issues the result from your failure to download and install any software updates for the Mobile App.

5.2 Compatible Mobile Device Operating System; Mobile Devices Generally. In order to use the Mobile App, you must have a compatible mobile device operating system that meets the specifications established by Whataburger in its sole discretion. From time to time, Whataburger may designate which mobile device operating systems are compatible, but as of the effective date of these Terms, compatible mobile device operating systems include Apple iOS and Android operating systems. In addition to having a compatible mobile device operating system, a mobile device that has been modified contrary to the manufacturer’s or mobile service provider’s software or hardware guidelines, including, but not limited to, disabling hardware or software controls (e.g. “jailbreaking”), is not a compatible device with the Whataburger Online Services for purposes of these Terms. The use of any modified mobile device with the Whataburger Online Services or Mobile App is a violation of these Terms and is grounds for the immediate termination of your Whataburger Online Services, including your MyWhataburger Account, by Whataburger without notice to you, in Whataburger’s sole discretion. You understand and agree you are still subject to the terms and conditions of any agreement you have with any mobile service provider (e.g., AT&T, Verizon, Sprint, T-Mobile, etc.) or any app store or marketplace for the Online Services (e.g., Apple, Inc. (Apple iOS), or Google, Inc. (Android)), and these Terms do not amend or supersede any of those separate agreements. You understand that such services may provide for fees, charges, limitations and restrictions which might impact your use of the Online Services (e.g., data use charges, etc.), and you agree to be solely responsible for all such fees, charges, limitations and restrictions. You agree that only your mobile service provider is responsible for the performance and operation of its products and services, including your mobile device and the mobile service provider’s own network. You agree to resolve any problems with your mobile service provider without involving Whataburger, Apple, Inc. (Apple iOS), Google, Inc. (Android), or any other operator of an app store or marketplace. You must comply with applicable third-party terms when using the Online Services (e.g., you cannot be in violation of your wireless provider agreement when using the Online Services). 

These Terms supplement and incorporate, as applicable, either (a) the Apple, Inc. (“Apple”) Terms and Conditions (located at www.apple.com/legal/internet-services/itunes/us/terms.html) including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); or (b) the Google, Inc. (“Google”) Terms of Service (located at www.google.com/intl/en/policies/terms/) including, without limitation, the Google Play Terms of Service provided therein (“Google Terms”); and (c) other Whataburger policies, including Whataburger Rewards (see Section 8.2 of these Terms). If any of the provisions of the Apple Terms, Google Terms or any applicable Whataburger policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the Mobile App. Whataburger, not Apple, Google, or any other operator of an app store or marketplace, is solely responsible for the Mobile App and the content thereof.

5.3 Mobile Payments. You may elect to participate in certain functionality of the Mobile App which will allow you to use the Mobile App to purchase Whataburger products at participating Whataburger locations in the same manner as is possible with a physical Whataburger gift card (a “Mobile Payment”). Mobile Payment is accepted at all company operated Whataburger retail locations and participating Whataburger licensed franchisee locations. Whataburger reserves the right at any time to discontinue Mobile Payment or change the location of stores accepting Mobile Payment. If you elect to use the Mobile Payment function, you will be asked to provide Whataburger with your Payment Method account information (such as credit card or debit card, or other financial account or third-party mobile wallet information) and the billing address associated with such Payment Method as necessary to load and reload funds to the Whataburger Virtual Gift Card account linked to your MyWhataburger Account used for origination, processing and settlement of your payment transactions with participating Whataburger locations. Your provision of a Payment Method and your action within the MyWhataburger Account of loading/reloading funds to your Whataburger Virtual Gift Card constitutes your authorization for such transactions using your selected Payment Method, and also constitutes your authorization for Whataburger to deploy card validation and anti-fraud measures.

6. Ordering via the Whataburger Website and Mobile App.

6.1 About Online Ordering. Through the Whataburger Website(s) and Mobile App, you may be able to order and/or pay for menu items (the “Menu Items”) from a Whataburger location (“Online Ordering”). To be able to order and pay for such Menu Items through Online Ordering via the Whataburger Website(s), you must log in to your MyWhataburger Account or otherwise supply certain information relevant to your transaction, including, without limitation, your credit or debit card number, the expiration date of your credit or debit card, the name on your credit or debit card, your billing address, your zip code, and/or your Whataburger physical gift card number. To be able to order and pay for such Menu Items through Online Ordering via the Mobile App, you must use one of the payment methods available in the Mobile App. YOU REPRESENT AND WARRANT THAT YOU ARE OF SUFFICIENT AGE AND HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR DEBIT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to Whataburger the right to provide and transmit such information for purposes of facilitating the completion of transactions initiated by you or on your behalf. Whataburger uses third party providers and may accept various third party services to process payments. For information regarding the use of physical coupons and special offers in conjunction with Online Ordering, see Section 8.3 of these Terms.

6.2 Menu Items in Online Ordering. All descriptions, images, features, specifications, products, and prices of Menu Items are subject to change at any time without notice. Every participating location may not have all Menu Items identified through Online Ordering. The inclusion of any Menu Item in Online Ordering does not imply or warrant that these Menu Items will be available. Images of Menu Items and packaging in Online Ordering are examples only and may not be identical to the Menu Items or packaging you receive from a restaurant. Online Ordering may allow you to customize your order. Portion size references (extra, light, etc.) are for convenience only and do not indicate nutrient content information of any kind. You acknowledge and agree that Online Ordering and the ability to purchase Menu Items is only available at participating locations (which locations are subject to change without notice). Prices and availability of Menu Items and customization options vary by location.

Whataburger reserves the right, with or without prior notice, to do any one or more of the following for any reason: (i) limit the available quantity of or discontinue any Menu Item; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar you from making or completing any or all transactions; and (iv) refuse to provide you with any Menu Item. You agree to pay all charges incurred by you, on your behalf, or by your My Whataburger Account through Online Ordering, at the price in effect when such charges are incurred. Because tax charges vary by locality, Whataburger can only provide an estimated tax and total until your order is placed. Check your confirmation email for the exact total you will be charged. You are solely responsible for any taxes applicable to your transaction. YOU FURTHER UNDERSTAND AND AGREE THAT YOU ARE PURCHASING DIRECTLY FROM RESTAURANTS (AND NOT WHATABRANDS) AND THAT WHATABRANDS HAS NO RESPONSIBILITY ARISING OUT OF OR RELATED TO ANY MENU ITEMS THAT YOU PURCHASE FROM RESTAURANTS USING ONLINE ORDERING.

6.3 Placing an Online Order; Scheduling a Pickup Time; Obtaining a Refund. You can use Online Ordering to build your order and send it to a participating Whataburger location that you select. When you build your order, you must select a pickup time and pickup location. For orders placed through the Whataburger Website(s), the pickup time you select will determine when your order is prepared at the designated Whataburger location. For orders placed through the Whataburger Mobile App, the pickup time is only an estimated time of your arrival at the designated Whataburger location; your order will not be prepared unless and until you select the “Start Cooking” button in the Mobile App when you arrive at the designated Whataburger location. You may receive a notification within Online Ordering and an emailed confirmation, delivered to the email you provide us, that the restaurant has accepted your order and/or is preparing it. If you complete an Online Order on the Mobile App, you may also receive an in-App notification (if you have not disabled this function on your device) confirming your order. Each order confirmation will include information regarding your purchase, such as Menu Items ordered and amount paid. Once an order is placed, changes cannot be made to the order.

If you place an Online Order through the Whataburger Website(s), the preparation of your order will start based on the pickup time you select.  If you arrive early to pick up an order placed through the Whataburger Website(s), you may check-in at the Online Order register, which will direct Whataburger to begin early preparation of your order.  If you place an Online Order through the Whataburger Mobile App, the preparation of your order will start when you select the “Start Cooking” button within the Mobile App when you arrive at the designated Whataburger location, regardless of the pickup time you selected. If you do not press the “Start Cooking” button within 24 hours of placing your Online Order through the Mobile App, your order will be cancelled.

It is your responsibility to timely pick up all orders. If an order is not timely picked up, Whataburger may remake your food when you arrive to pick it up. This is to protect the quality of our product.

Based on your scheduled pickup time, or if you have not yet pressed the “Start Cooking” button in the Mobile App, you may have an opportunity to cancel your order. However, once Whataburger starts preparing your order, you will no longer have the ability to cancel. At that point your purchase is complete, and you authorize the restaurant to process your order total, even if you do not timely pick up the order at the applicable restaurant. The restaurant’s payment service provider will process your total amount to the payment card you selected when you built the order.

If you desire to seek a refund for any reason, including if the products are unsatisfactory or other reasons, please contact resolution@wbhq.com. If approved, please allow at least 4 weeks for any refund to be processed; refund times may vary based on your payment card issuer.

We reserve the right, in our sole and absolute discretion, to require proof of identity (in a form acceptable to Whataburger): (i) for the purposes of verifying the legitimacy of any order and/or other information; and/or (ii) for any other reason we deem necessary, in our sole and absolute discretion, for the purposes of fulfilling an order in accordance with our interpretation of these Terms.

7. Use of the Online Services and Mobile App.

7.1 Grant of License. Whataburger either owns, or has licenses to, the Online Services, including the Whataburger Websites and Mobile App, and the intellectual property rights associated with them. Some components of the Online Services, including the Mobile App, may be owned by third-party service providers (“Third-Party Providers”), but Whataburger has a valid license, including the right to sublicense, from such Third-Party Providers. Whataburger grants you, for personal use only on a computer, tablet, or mobile device owned or controlled by you as permitted by the Usage Rules contained in the Apple Terms, and in accordance with these Terms, a personal, limited, non-exclusive, revocable, non-transferable, royalty-free license, without the right to sublicense, to access and use the Online Services and Mobile App in accordance with these Terms (the “License”). This License includes use of the Websites, the Mobile App, and any software, programs, documentation, tools, internet-based or mobile-based services, components, and any updates, including, but not limited to, software maintenance, Service information, help content, bug fixes and maintenance releases provided to you by Whataburger. The Whataburger Online Services are subject to the intellectual property rights of Whataburger and any Third-Party Providers and their respective licensors, existing under any foreign, state or local laws or regulations, now or hereinafter in force and effect, and in any jurisdiction worldwide, including, without limitation, patent law, industrial rights law, copyright law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights whether under statutory or common law (or otherwise), and any and all national, foreign, and state registrations, applications, renewals, extensions and restrictions of any of the foregoing.

7.2 Prohibited Use. You must comply with all laws, rules and regulations applicable to your use of the Online Services, including the Mobile App. You may not create links (hyper-links) to the Whataburger Websites without first obtaining permission in writing from Whataburger. You will not, and will not permit any third party to, do or attempt to do any of the following: (a) access or monitor any material or information in the Online Services, including the Mobile App, using any manual process or robot, spider, scraper or other automated means; (b) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, loan or distribute any material or information provided to you by Whataburger; (c) use the Online Services, including the Mobile App, in any manner that would interfere with the rights of any third party; (d) take any action that could compromise the security of the Online Services or Mobile App; (e) violate the restrictions in any robot exclusion headers in any aspect of the Online Services or Mobile App, work around, bypass, or circumvent any of the technical limitations of the Online Services or Mobile App, use any tool to enable disabled features or functionalities of the Online Services or Mobile App, or decompile, disassemble or otherwise reverse engineer the Online Services or Mobile App; (f) transfer any rights granted to you under these Terms; (g) perform or attempt to perform any actions that would interfere with the proper working of the Online Services or Mobile App, prevent access to or use of the Online Services or Mobile App by other users, or impose an unreasonable or disproportionately large load on Whataburger’s infrastructure, including but not limited to excessively high volume data transfers or bandwidth use; or (h) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (i) violates these Terms; (j) attempts to damage, disable, overburden or impair Whataburger’s servers or networks; (k) impersonate any person or entity or otherwise misrepresent your identity or affiliation with another person or entity; (l) fail to comply with applicable third party terms or otherwise use the Online Services or Mobile App except as permitted by these Terms (collectively, “Prohibited Use”). Whataburger reserves the right, in its sole discretion, to terminate any User license granted under Section 7.1, terminate any User’s participation in the Online Services or Mobile App, remove any content, or assert legal action with respect to any content or use of the Online Services or Mobile App that Whataburger reasonably believes is or might be in violation of these Terms, Apple Terms, Google terms or the terms of any other app store or marketplace, or other applicable Whataburger policies. Whataburger’s failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.

7.3 User Content and Data. “User Generated Data” means any and all information that is generated by your use of the Online Services or Mobile App, including automatic reporting and other tools that give you the ability to create, post and distribute various forms of content for and in connection with the Online Services or Mobile App, including, but not limited to, payment transaction data, Whataburger Rewards account data, pictures, photographs, videos, and other information, including content generated by you. For pictures, photographs and videos, the User Generated Data includes only those pictures, photographs and videos that you take through the Online Services or Mobile App, and does not include those pictures, photographs and videos you take via the standard functions on your mobile device, or that you take through any other app not related to Whataburger.

(a) You may have the opportunity to upload photos and post comments, information and materials to the Online Services or Mobile App (“User Content”). You represent that you will not contribute User Content to the Online Services or Mobile App unless you have created it or have express permission from the creator or copyright owner to do so. By contributing User Content to the Online Services or Mobile App, you grant Whataburger, its parents, subsidiaries, affiliates and successors a worldwide, perpetual, irrevocable, non-exclusive, fully paid, royalty free, sub-licensable right to use, modify, reproduce, adapt, publish, prepare derivative works from, distribute and publicly display any User Content contributed by you.

(b) Special Terms Applicable To Our Use Of Your Posts, Tweets And Other Social Media Communications. By allowing us to use your post or tweet, you are agreeing to the following additional terms and conditions. Please read them carefully and only give us permission to use your post or tweet if you agree with them. You represent to us that you are at least 18 years of age. By giving us permission to use your post or tweet, you agree that we may, at our discretion, use your real or social media user name and the content of your post or tweet (including all accompanying images) on our Websites to promote our company, products and services for such time period as we wish. You give us the right to edit your post or tweet for brevity, clarity and the like and to modify any image in any manner we deem necessary to use it on our Websites. You will not have the advance right to review or approve what we post on our Websites. You represent to us that you have all rights needed to grant this permission to us. For example, if an image you included with your post depicts persons other than yourself, the other people in the image must have given you unrestricted permission to allow us to post the image on our Websites. You will not receive any compensation for granting us the above rights. We agree that you may withdraw the permission you have given us at any time by sending us an email at resolution@wbhq.com. We will remove your post or tweet (including accompanying images) reasonably promptly after receiving your email.

(c) You may not, and represent and warrant that you will not, contribute any User Content that: (i) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, disparaging, libelous, threatening, predatory, harassing, hateful, racially or ethnically offensive, abusive, inflammatory, or is otherwise objectionable or inappropriate; (ii) promotes or encourages conduct that is illegal or would give rise to civil liability; (iii) breaches any duty toward, or rights of, any person or entity, including rights of publicity or privacy; (iv) contains corruptive data or any other harmful, disruptive, or destructive files; (v) is “spam” or contains direct marketing communications, unsolicited advertising, promotional materials or other forms of solicitation or commercial content; (vi) poses or creates a privacy or security risk to any person; (vii) in Whataburger’s sole discretion, is objectionable, restricts or inhibits any person or entity from using or enjoying any aspect of the Online Services or Mobile App, or which may expose Whataburger, its parents, subsidiaries, affiliates or other Online Service or Mobile App users to harm or liability; or (viii) is an impersonation of, or attempt to impersonate, another person. Whataburger reserves the right, but shall have no obligation to, screen, edit, remove or disable any User Content at any time and for any reason without notice. You acknowledge that by using the Online Services, you may be exposed to User Content that is offensive, indecent or objectionable. Whataburger has no duty to pre-screen User Generated Data or User Content. Whataburger has the right to edit, remove, block or refuse to post any submitted User Generated Data or User Content from any network or Internet site for any reason without prior notice, but assumes no obligation to do so and is not responsible for any failure or delay in doing so. You agree that Whataburger shall not have any responsibility for or liability with respect to any User Content posted by you or others, and Whataburger expressly disclaims any and all liability in connection with any User Content or User Generated Data.

(d) You may have the opportunity to provide feedback, comments, suggestions, and ideas concerning use of, or suggested improvements or enhancements to, the Whataburger Online Services or Mobile App (“Feedback”). Feedback may also include your responses to surveys or other reporting. Whataburger and its authorized Third-Party Providers may obtain information from you regarding the use of the Online Services or Mobile App, including information such as payment transaction data, advertising and offer redemption, mobile usage or patterns, online activities or any other activities conducted through your use of the Online Services or Mobile App. You agree that your Feedback is provided gratuitously, unsolicited and without restriction. Whataburger shall have no duties or obligations with respect to Feedback provided by you. Whataburger shall be entitled to use and disseminate any Feedback for any purpose, in its discretion, without any compensation to you.

7.4 User Permission for Autodialed Calls, Prerecorded Calls, Text Messages, Push Notifications, and E-Mail. You grant Whataburger express written consent to send you autodialed and/or prerecorded message calls and text messages from Whataburger, and Third-Party Providers acting on Whataburger’s behalf, to any mobile telephone number you provide to Whataburger, regardless of your registration of your mobile device number on any state or federal “do not call” registry. Your express, written permission applies to calls and messages regarding the Whataburger payment transaction Online Services and the Whataburger Rewards Program if you have opted in to such program. For example, we may call or send you a message if your Payment Method has been declined, or when you earn a Whataburger Reward.

Whataburger will send push notifications to you through the Mobile App regarding Services-related information. You may also choose to allow Whataburger to send you push notifications regarding marketing, including information on special offers and promotions. To turn marketing-related push notifications on or off at any time, just visit the “Settings” portion of the Mobile App. Please note that even if you turn off marketing-related push notifications, we will continue sending you Services-related push notifications until you uninstall the Mobile App. 

By providing your email address to Whataburger, you agree that Whataburger, and those Third-Party Providers acting on Whataburger’s behalf, will email you MyWhataburger Account registration information and other information related to the Services. When you create your MyWhataburger Account, for your convenience, the option to be added to the Whataburger email distribution list has been toggled “on.” If you choose to have Whataburger add your email address to the Whataburger email distribution list you can simply leave this toggle in the “on” position when you create your MyWhataburger Account, and making this selection means you agree that Whataburger, and those Third-Party Providers acting on Whataburger’s behalf, may email you special offers, promotions, and other marketing related emails. You can choose not to be on the Whataburger email distribution list by toggling the option “off” when you create your MyWhataburger Account, or you can remove your email address from the Whataburger email distribution list at any time by visiting the “Settings” portion of the Website or Mobile App, or by clicking the “Unsubscribe” button at the footer of any Whataburger email. Please note that even if you remove your email address from the Whataburger email distribution list, we will continue sending you Services-related information until you delete your MyWhataburger Account or uninstall the Mobile App. 

With regard to any text messages, push notifications, or emails relating to the Services, Whataburger will not include any full Payment Method account numbers, access codes, or similar non-public personal information in any such message, alert, or email. 

7.5 WHATASTORE® Terms of Purchase. Refer to the “Whataburger FAQs” page of the WHATASTORE® section of the Whataburger Website(s) for additional details regarding purchases of products from the Whataburger Website(s). By placing an order for products through the Whataburger Website(s), you agree to by bound by and accept the information accessible at the “Whataburger FAQs” page at the time of such order, as well as the following terms:

(a) All prices are shown in U.S. dollars. All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue products without notice, even if you have already placed your order. All prices are subject to change without notice, and you agree that taxes may be adjusted from the amount shown on the payment screens;

(b) If for some reason an item on your order is temporarily out of stock, we will back order that item for you and ship the other merchandise immediately. Items on back order will be charged when the items are actually shipped, along with applicable taxes and shipping charges;

(c) We attempt to be as accurate as possible; however, we do not warrant that all product descriptions, photographs, pricing or other information on the Whataburger Website(s) are accurate, complete, current or error-free. If a product is not as described or pictured, your sole remedy is to return it in an unused condition for a refund. In the event of an error, whether on the Whataburger Websites, in an order confirmation, in processing an order, in delivering a product or otherwise, we reserve the right to correct such error and revise your order accordingly or to cancel the order and refund any amount charged. Your sole remedy in the event of an error is to cancel your order and obtain a refund;

(d) WHATABURGER WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY, EXCEPT AS EXPRESSLY PROVIDED HEREIN. TO THE FULL EXTENT PERMITTED BY LAW, WHATABURGER’S LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE PURCHASE OF PRODUCTS FROM THE WHATABURGER WEBSITES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU; and

(e) Whataburger products may be returned or exchanged in accordance with the policies described on the Whataburger Websites. THIS IS THE ONLY GUARANTEE OR WARRANTY YOU GET FROM WHATABURGER RELATING TO THE PRODUCTS YOU PURCHASE. WHATABURGER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER IN WRITING, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PRODUCTS ARE PROVIDED BY WHATABURGER “AS IS” AND WITHOUT WARRANTY OF ANY KIND.

8. Optional Whataburger Services.

8.1 Availability of Optional Whataburger Services. By using the Online Services, including the Mobile App, you may have the option to elect to participate in or receive certain promotional materials, advertisements, offers, coupons, geo-location services, and Whataburger Rewards (collectively, the “Optional Services”). Whataburger Rewards is governed by the terms contained in Section 8.2 of these Terms. Your use of any other Optional Services offered by Whataburger will be governed solely by any applicable terms and conditions regarding such Optional Services. If you choose to participate in any Optional Services, you will be responsible for reviewing and understanding any terms and conditions applicable to such Optional Services. You are responsible for any and all fees that may be charged by your mobile device provider in connection with your use of the Optional Services. You consent to the collection, use, sharing and transfer of your information regarding such Optional Services to Third-Party Providers of Whataburger who help facilitate such Optional Services.

8.2. Whataburger Rewards. 

(a) Whataburger Rewards Program. The “Whataburger Rewards Program” is the rewards program operated by Whataburger as part of the MyWhataburger Account, and a “Whataburger Reward” is a reward earned under the Whataburger Rewards Program. Whataburger reserves the right to change, modify, and/or eliminate the Whataburger Rewards Program at any time and in its sole discretion. 

Whataburger Rewards is one way in which Whataburger endeavors to reward and thank loyal Whataburger customers for purchasing Whataburger products. MyWhataburger Account holders can earn and accumulate Whataburger Rewards that may be redeemed at participating Whataburger locations. Unfortunately, not all locations have the ability to award or honor Whataburger Rewards at this time. For example, you cannot earn or redeem Whataburger Rewards at non-participating Whataburger locations. 

In addition to the Whataburger Rewards Program, we, or Third-Party Providers acting with our permission, may offer you special promotional rewards or other items.

(b) Rewards Benefits.

The benefits that are available to you through Whataburger Rewards are based on the number of food purchases you make at participating Whataburger locations (each a “Qualifying Visit”). You will earn one (1) Whataburger Reward when you make five (5) Qualifying Visits at participating Whataburger locations in a rolling one (1) year period calculated from the date on which you create your MyWhataburger Account. To make a Qualifying Visit that counts towards a Whataburger Reward, you must (a) scan the barcode in the Whataburger Rewards section of your Mobile App, (b) pay with your Whataburger Virtual Gift Card account linked to your MyWhataburger Account (either within the Whataburger Websites, Mobile App or from within a third party mobile wallet into which your Whataburger Gift Card has been added) when you make a food purchase, and/or (c) use your MyWhataburger Account to make a food purchase through Online Ordering.

(c) Earning a Qualifying Visit. You can only earn one (1) Qualifying Visit every three (3) hours. Some purchase exclusions apply. For instance, you cannot earn Whataburger Rewards on Whataburger merchandise (e.g. t-shirts, caps), Whataburger retail products (e.g. Whataburger ketchup sold at grocery store locations, other retail locations or online), purchase of physical Whataburger gift cards or loading/reloading of funds onto your Whataburger Virtual Gift Card associated with your MyWhataburger Account, or other non-food items. Transactions with less than a $0.01 total do not earn a Qualifying Visit. Taxes, tips, donations, and fees may also be excluded or ineligible for Whataburger Rewards accrual. In-restaurant purchases made under Whataburger’s Group Dining Program and any purchases where a Whataburger coupon is applied are also excluded.

(d) Qualifying Visit Expiration.

If you do not make five (5) Qualifying Visits (a) for the first Whataburger Reward, within one (1) year of registering for Whataburger Rewards by creating your MyWhataburger Account, or (b) for subsequent Whataburger Rewards, within one (1) year of redeeming your most recent prior Whataburger Reward, you will lose any Qualifying Visits you have made since registering for Whataburger Rewards or redeeming your most recent Whataburger Reward, and accrual of the five (5) Qualifying Visits will start over.

(e) Reward Redemption.

You may redeem each Whataburger Reward for the specific menu items that Whataburger, in its sole discretion, may make available for Whataburger Rewards redemption. A list of current menu items is available in the Mobile App and at the Whataburger Website at www.whataburger.com. Whataburger Rewards may not be redeemed for Whataburger retail products, Whataburger merchandise, Whataburger gift cards, or cash. 

(f) Expiration of Earned Rewards.

A Whataburger Reward expires sixty (60) days after the date it is earned. Whataburger Rewards may not be redeemed for cash and have no cash value. Whataburger Rewards may not be combined with other offers or coupons. 

8.3 Saving and Redeeming Certain Optional Services. Certain items offered as Optional Services, including, but not limited to, advertising and offers, coupons, rewards and special offers, can be saved to your MyWhataburger Account for later use. In order to redeem such Optional Services, you may be asked by Whataburger to show your mobile device with Mobile App for Whataburger to view or scan, or to provide the promotion code or other code associated with the Optional Services being redeemed on the Whataburger Website or at a Whataburger location. Coupons and special offers may have expiration dates. Physical coupons and special offers cannot be used in conjunction with Online Ordering, unless otherwise stated on the physical coupon or in the special offer.

8.4 Opt-In to Optional Geo-Location Services. In connection with the Online Services, you will have the choice during registration for the MyWhataburger Account to opt into geo-location services so that Whataburger may (1) provide the store locator services to you, (2) market additional products and services to you (including offers based on geo-location information), and (3) conduct internal research based on your current location. By opting into such geo-location services, you consent to the collection, use, sharing, and transfer of your geo-location data with Whataburger and Third-Party Providers of Whataburger who help facilitate the Online Services. After registering for the MyWhataburger Account, you may turn geo-location services on or off by visiting the “Settings” portion of the Mobile App or the settings of your web browser. However, please be advised that turning off geo-location services within your mobile device may adversely affect the provision or quality or performance of certain services and features of the Mobile App.

8.5 Customer Service. For any customer service issues related to your use of your MyWhataburger Account or Mobile App, please contact us in one of the following ways:

Email: resolution@wbhq.com

Telephone: 1-800-6-BURGER

Physical mail:             Whataburger

                                    300 Concord Plaza Dr.

                                    San Antonio, TX 78216

                                    ATTN: Whataburger Customer Care

For your protection, do not include your Payment Method account information (such as credit card or debit card, or other financial account or third-party mobile wallet information) when emailing Whataburger Customer Care or when using the “Contact Us” function inside the Mobile App.

Any issues related to your mobile device should be directed to your mobile device provider.

9. Third Party Mobile Wallets at Point of Sale.

9.1 Adding Whataburger Virtual Gift Card to Third Party Mobile Wallet. In connection with your MyWhataburger Account and the Mobile App, you may have the ability to add your Whataburger Virtual Gift Card to a third party mobile wallet, such as Apple Pay®  or Google Pay™ (a “Wallet”) on any mobile phone, tablet, watch or other device that supports the Wallet. You understand that these Terms still apply to your use of your Whataburger Virtual Gift Card in a Wallet. You also understand that the use of a Wallet is governed by the separate terms and conditions of that particular mobile wallet provider (“Wallet Provider”). For example, using Apple Pay™ with the Touch ID™ function to pay is governed by the separate Apple Pay™ terms and conditions, and not these Terms.

If you want to add your Whataburger Virtual Gift Card to a Wallet, you must follow the procedures adopted by each Wallet Provider and any further procedures we adopt. The Wallet allows you to make purchases using an added Whataburger Virtual Gift Card at company operated Whataburger retail locations and participating Whataburger licensed franchisee locations where the Wallet is accepted. Whataburger reserves the right at any time to cease accepting Wallets or change the location of stores accepting Wallets.

When you use your Whataburger Virtual Gift Card in a Wallet to make a payment transaction at a participating Whataburger location, you will not be required to enter your MyWhataburger Account Login Credential(s) to initiate and approve such payment transaction. You are responsible for all activity that occurs under or in association with your Virtual Gift Card, including unauthorized payment transactions that result from your failure to safeguard your Wallet, mobile device or mobile device passcode.

9.2 Applicable Fees. We do not charge you any fees for adding a Whataburger Virtual Gift Card to a Wallet. However, Wallet Providers or other third parties, such as wireless companies or data service providers, may charge you service fees in connection with the use of your mobile device or Wallet.

9.3 Whataburger is Not Responsible for the Use or Function of a Wallet. Each Wallet Provider is solely responsible for its use and function. We are only responsible for the Whataburger Virtual Gift Card. You should contact the Wallet Provider’s customer service if you have questions concerning how to use the Wallet or for problems with the Wallet. We are not responsible for any failure of a Wallet or your inability to use a Wallet for any transaction. We are also not responsible for any loss, injury or inconvenience you suffer as a result of a Whataburger location refusing to accept a Wallet. We are also not responsible if there is a security breach affecting any information stored in a Wallet or sent from a Wallet.

10. Intellectual Property (Including Marks).

10.1 Intellectual Property Rights of Whataburger and Third Parties. Whataburger either owns, or has licensed, all U.S. legal right, title and interest in and to the Online Services and Mobile App, including, but not limited to, any trademark, copyright, patent, trade secret, trade dress, service marks and other worldwide intellectual property rights as they relate to the Online Services (the “Intellectual Property”). These Terms do not grant you any rights with respect to the Intellectual Property. Whataburger, the Whataburger logo, and other Whataburger trademarks, service marks, graphics and logos used in connection with the Online Services are trademarks or registered trademarks of Whataburger, its parents or affiliates (collectively, “Whataburger Marks”). Other trademarks, service marks, graphics and logos used in connection with the Online Services are the trademarks of their respective owners (collectively, “Third Party Marks”). The Whataburger Marks and Third Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Whataburger or the applicable trademark holder. The Online Services and all content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights and also may have security components that protect digital information only as authorized by Whataburger or the owner of the content.

10.2 Copyright Infringement. Whataburger reserves the right to terminate your access to the Online Services, including your MyWhataburger Account and the Mobile App, in the event you infringe on any copyright rights of Whataburger or any third party. Whataburger also reserves the right to remove any User Content or any other material posted by a User that is alleged to infringe the copyrights of others. If you believe that any material posted to any of the Online Services or Mobile App constitutes copyright infringement, you should provide the following information to Whataburger at the address provided in Section 18.1 below: (a) the signature of the person authorized to act on behalf of the owner of the copyright that is allegedly being infringed; (b) a description of the copyright-protected work that is allegedly being infringed; (c) the location of such material in the Online Services or in Mobile App; (d) your address, telephone number, and email address; (e) a written statement by you stating your good faith belief that the use of the allegedly infringing material is not authorized by the copyright owner or applicable law; and (f) a written statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf. By submitting this notice, you agree that Whataburger may provide the information provided by you to the person who posted the allegedly infringing material. In the event that any material that you posted to any of the Online Services or Mobile App is removed by Whataburger, you may send to Whataburger at the address provided in Section 18.1 a counter-notice containing the information required by 17 USC § 512(g)(3), which Whataburger will forward to the party who alleged the infringement. In the event that the party who alleged the infringement does not file any action seeking a court order to restrain you from engaging in the infringing activity within ten (10) business days of receiving the counter-notice, Whataburger may, in its sole discretion, reinstate the removed material.

11. Third Party Content, Applications, Products and Services (including Advertising and Promotions). Whataburger may provide third party content in the Online Services and Mobile App (including embedded content) or links to our Third-Party Providers, other third party vendors or other third party content, applications, products and services, including advertisements and promotions (collectively, “Third Party Content”) as a service to those interested in this information. We do not control, endorse or adopt any Third Party Content, including that the inclusion of any link does not imply affiliation, endorsement or adoption by Whataburger of any application or any information contained therein, and can make no guarantees as to its accuracy or completeness. You acknowledge and agree that Whataburger is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update and review such Third Party Content. You agree to use such Third Party Content contained therein at your own risk. When you use other applications via Third Party Content, or participate in promotions or business dealings with third parties, you should understand that our Terms and policies no longer govern, and that the terms and policies of those Third Party applications will now apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any application to which you navigate from the Online Services or our Mobile App.

12. Modification.

Whataburger may, in its sole discretion, change, modify or amend these Terms at any time and will generally provide you prior notice of such change by electronic communication in accordance with the terms of your E-SIGN Agreement. Such changes for which prior notice is given will become effective after being posted or sent to you in the manner set forth in your E-SIGN Agreement. However, Whataburger reserves the right to modify or discontinue, temporarily or permanently, all or a portion of the Mobile App and related Online Services without prior notice (e.g. to prevent fraud, to comply with applicable law or to reflect changes to our ingredients listed). Your continued use of the Online Services, including the Mobile App, after the effective date of any such changes made by Whataburger, with or without prior notice, will constitute your acceptance of the changes. In the event you do not agree with any such changes, your sole and exclusive remedy is to terminate your use of the Online Services or Mobile App.

13. Termination.

13.1 Your Right to Terminate. You may terminate these Terms and your use of the Online Services, including the Mobile App, at any time by deactivating your MyWhataburger Account, or by notifying Whataburger in writing at the address provided in Section 18.1 below. If you have any funds remaining on the Whataburger Virtual Gift Card associated with your MyWhataburger Account, you must follow the provisions of Section 4.8 of these Terms.

13.2 Whataburger’s Right to Terminate. Whataburger may terminate these Terms by terminating your access to the Online Services, including closing your MyWhataburger Account at any time and for any reason, in its sole and absolute discretion without liability. Whataburger may also suspend the Online Services or your MyWhataburger Account if Whataburger determines, in its sole discretion, that you (a) have violated these Terms, (b) pose a fraud or other legal risk to Whataburger, or (c) have provided false, incomplete, inaccurate or misleading information or have otherwise engaged in fraudulent or illegal conduct.

13.3 Effect of Termination. Upon termination of these Terms and your use of the Online Services, including the Mobile App, the license granted to you under these Terms will immediately end and you must immediately stop using the Online Services and Mobile App. Whataburger will have the right to deactivate your MyWhataburger Account if you have not already done so. Upon termination, you will remain liable for all payment transactions and other fees you initiated prior to the time of termination. Whataburger will not be liable to you or any third party for compensation, reimbursement, or damages arising in connection with your use of the Online Services or Mobile App or in connection with the termination or suspension of your use of the Online Services or Mobile App.

14. Disclaimer of Warranties.

14.1 Disclaimer of Whataburger Warranties. THE ONLINE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH WHATABURGER, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATABURGER, ITS PARENTS, SUBSIDIARIES AND AFFILIATES, MAKE NO REPRESENTATIONS AND DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE ONLINE SERVICES OR MOBILE APP, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THOUGH THE ONLINE SERVICES OR MOBILE APP, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WHATABURGER, ITS PARENTS, SUBSIDIARIES AND AFFILIATES DO NOT WARRANT THAT ANY CONTENT OF THE ONLINE SERVICES OR MOBILE APP IS ACCURATE, RELIABLE OR CORRECT; THAT THE ONLINE SERVICES OR MOBILE APP WILL MEET YOUR REQUIREMENTS; THAT YOUR USE OF THE ONLINE SERVICES OR MOBILE APP WILL BE UNINTERRUPTED OR ERROR FREE; THAT THE ONLINE SERVICES OR MOBILE APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECT OR ERRORS WILL BE CORRECTED; OR THAT THE ONLINE SERVICES OR MOBILE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WHATABURGER SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS INITIATED BY YOU THROUGH THE ONLINE SERVICES OR MOBILE APP. WHATABURGER SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE EFFECTS OF PROBLEMS CAUSED BY THE MOBILE APP RUNNING ON YOUR PARTICULAR MOBILE DEVICE. IF YOU ARE DISSATISFIED WITH THE ONLINE SERVICES OR MOBILE APP, ANY CONTENT THEREON OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE ONLINE SERVICES OR MOBILE APP.

14.2 Disclaimer of Warranties Related to Third Parties. WHATABURGER DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY OR LIABILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH THE ONLINE SERVICES OR MOBILE APP. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, Google, or any other app store or marketplace, and Apple, Google or the operator of any other app store or marketplace will refund the purchase price for the Mobile App to you and, to the maximum extent permitted by applicable law, Apple, Google or the operator of any other app store or marketplace will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Whataburger’s sole responsibility. Additionally, Apple, Google or the operator of any other app store or marketplace has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App. Whataburger, not Apple, Google or the operator of any other app store or marketplace, is responsible for addressing any of your claims any third party claims relating to this Mobile App. 

15. Limitation of Liability.

UNLESS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL WHATABURGER, ITS PARENTS, SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, OWNERS, EMPLOYEES OR AGENTS (THE “WHATABURGER PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH THE USE, INABILITY TO USE, OR UNAVAILABILITY OF THE ONLINE SERVICES OR MOBILE APP. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED DAMAGES ARE BASED ON A CLAIM OR ACTION IN CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF DUTY, INDEMNITY, CONTRIBUTION OR OTHERWISE, EVEN IF THE WHATABURGER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. UNLESS OTHERWISE PROVIDED FOR IN THESE TERMS, IN NO EVENT SHALL THE WHATABURGER PARTIES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS AND THE USE OF THE ONLINE SERVICES OR MOBILE APP EXCEED THE TOTAL DOLLAR VALUE OF AN INDIVIDUAL ORDER. Some jurisdictions do not allow the limitation of liability in contracts with consumers, so some or all of these limitations of liability may not apply to you. In the event your mobile device is lost or stolen, please follow the instructions set forth in Section 4.9.

16. Indemnification.

You will indemnify, defend and hold harmless Whataburger, its parents, subsidiaries and affiliates, and its and their directors, officers, owners, employees, agents, consultants, contractors and other representatives (collectively, the “Indemnified Parties”) from and against any and all claims, demands, causes of action, debts, losses, liabilities, damages, judgments, settlements, tax assessments, penalties, interest, and expenses, including reasonable attorneys’ fees, arising out of, related to, or which may arise from: (a) your use of the Online Services or Mobile App; (b) your actual or alleged breach of or non-compliance with any of these Terms; (c) your violation of any right of a third party in connection with your use of the Online Services or Mobile App, including but not limited to any right of privacy, publicity rights, or intellectual property rights of such third party; (d) your negligence or violation or alleged violation of any federal or state law, rule or regulation; or (e) any other party’s access and/or use of the Online Services or Mobile App with your Login Credentials.

You agree to defend, indemnify and hold harmless Whataburger, its parent, subsidiary and other affiliated companies, independent contractors, service providers and consultants, and their respective employees, contractors, agents, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities and expenses (including attorney’s fees) that arise from or relate to your use or misuse of the Mobile App (including payment transactions or loading/reloading of funds), violation of these Terms, or violation of any rights of a third party. Whataburger reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses. In the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, Whataburger, not Apple, Google or the operator of any other app store or marketplace, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

17. Governing Law; Dispute Resolution; Jurisdiction; Venue; Jury Waiver.

These Terms and any claim, action or dispute arising hereunder will be governed by the laws of the State of Texas, without regard to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and Services shall have no applicability. We are located in Texas and that is where you entered into these Terms and opened your MyWhataburger Account. In addition, we are subject to certain federal and state regulations and we must comply with these laws, regulations and rules. You agree that if there is any inconsistency between these Terms and any applicable law, regulation or rule, these Terms will prevail to the extent any such law, regulation or rule may be modified by agreement.

THE PARTIES (A) IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN BEXAR COUNTY, TEXAS, IN ANY ACTION ARISING OUT OF THESE TERMS OR USE OF THE ONLINE SERVICES, (B) AGREE THAT ALL CLAIMS IN ANY ACTION MAY BE DECIDED IN EITHER COURT, AND (C) WAIVE, TO THE FULLEST EXTENT THAT THEY MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM. THE PARTIES, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THESE TERMS OF USE OF THE ONLINE SERVICES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. NEITHER PARTY WILL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. Prior to filing any lawsuit, except a lawsuit relating to a breach of confidentiality obligations hereunder, the parties agree to (a) first participate in an executive level meeting held at the office of the party requesting the meeting, which shall be attended by representatives of you and Whataburger acting in good faith and with all necessary authority to resolve the dispute; (b) then, if the foregoing meeting is unsuccessful, participate in good faith, and with all necessary authority to resolve the dispute, in a one day mediation, the cost of the mediator to be paid equally among the parties. The mediation will be conducted in San Antonio, Texas. Except for the sharing of the cost of the mediator, the parties shall bear their own costs associated with such mediation. All applicable statutes of limitation will be tolled until the meeting and mediation specified in this Section 17 have been completed. The parties will take such action, if any, required to effectuate such tolling.

18. Miscellaneous.

18.1 Notice. In addition to the Electronic Communications authorized in the E-SIGN Agreement, any questions, complaints, or claims regarding the Online Services may be made by email, telephone or regular mail to:

Email: resolution@wbhq.com

Telephone: 1-800-6-BURGER

Physical mail:             Whataburger

                                    300 Concord Plaza Dr.

                                    San Antonio, TX 78216

                                    ATTN: Whataburger Customer Care

18.2 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted assignment will be deemed void. Whataburger reserves the right to assign these Terms and the rights and obligations hereunder to any third party without notice to you. These Terms will be binding and inure to the benefit of the parties hereto and their successors and permitted assigns.

18.3 Force Majeure. Without limiting the applicability of the terms of Section 15, the Whataburger Parties shall have no liability for any failure or delay resulting from conditions beyond the reasonable control of such party, including but not limited to any industrial dispute, acts of war, governmental action, acts of terrorism, acts of God, labor conditions, power failures and Internet or mobile network disturbances.

18.4 Entire Agreement. These Terms represents the Parties’ entire understanding with respect to the subject matter contained herein and supersedes and cancels all prior written or oral contracts, agreements and understandings of the parties with respect to the subject matter of these Terms.

18.5 Survival. The provisions of these Terms which are expressly, or by implication, intended to continue in force notwithstanding the termination of these Terms or your termination of use of the Online Services or Mobile App for any reason, will survive termination or expiration of these Terms.

18.6 No Waiver; Severability. The failure of Whataburger to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms shall be adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be removed to the minimum extent necessary and the remainder of these Terms shall remain in full force and effect.

18.7 Conflicts. In the event of a conflict between these Terms and any other terms and conditions or policies of Whataburger, these Terms shall prevail as to the subject matter contained herein.

18.8 Headings and Subheadings. The use of titles and headings with reference to certain portions of these Terms is solely for the convenience of the reader and are of no legal effect.

18.9 Third Party Beneficiary. Apple and Apple’s subsidiaries, Google and Google’s subsidiaries, and any operator of any other app store or marketplace, and its subsidiaries, are third party beneficiaries to these Terms. Upon your acceptance of these Terms, Apple, Google and the operator of any other app store or marketplace will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as a third party beneficiary thereof. 

 

If you DO NOT agree to the Whataburger Online Services Terms and Conditions,

PLEASE EXIT THE WHATABURGER WEBSITE(S) OR UNINSTALL THE WHATABURGER MOBILE APP NOW.

 

If you AGREE to the Whataburger Online Services Terms and Conditions,

CLICK THE “AGREE” BUTTON NOW.