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WHATABURGER ONLINE SERVICES E-SIGN DISCLOSURE AND AGREEMENT

 

Effective February 7, 2023

Version 4.0



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effective until expressly withdrawn by you.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 of 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
accepting 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 below in Section 18.1 of the Whataburger Online Services Terms and
Conditions. 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 below. 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

 

If you either (i) use the Whataburger Online Services (either the Whataburger
Website or the Mobile App), or click on the “I Agree” button in 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 either (i) use the Whataburger Online Services (either the Whataburger
Website or the Mobile App), or (ii) click on the “I Agree” button in the
Whataburger Website or Mobile App, such actions evidence your consent to
electronic delivery of disclosures and the following Whataburger Online Services
Terms and Conditions.




 

 

WHATABURGER ONLINE SERVICES TERMS AND CONDITIONS

 

Effective February 7, 2023

Version 4.0

 

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.

 

BY ACCEPTING THESE TERMS, YOU AGREE TO RESOLVE ANY DISPUTE WITH US ARISING OUT
OF OR RELATED TO THESE TERMS THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE
PROCEDURES AND YOU AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION
SUIT. 

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, features and any Whataburger
hosted games or challenges and made available through any Whataburger website,
including, but not limited to whataburger.com, stories.whataburger.com,
shop.whataburger.com, locations.whataburger.com, whataburger.avature.net,
whataburger.taleo.net, whataburgervisit.com, whataburgerfeedback.com,
whatastore.com, and whataburger.app.link (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 for your safety, do not use the Online
Services or Mobile App while driving.

 

2.2 Nutrition Disclaimer. The Whataburger Online Services 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, and may in
turn result 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 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 and
Whataburger Online Services comply, and will continue to comply, with applicable
laws and regulations.

 

(g) You will not use the Whataburger Online Services in connection with any
fraudulent or illegal activity or in any manner which interferes with the
operation of the Whataburger Online Services.

 

(h) You will use the Whataburger Online Services only in compliance with these
Terms.

 

(i) The account with your mobile service provider that you use for the mobile
device, and the account with your internet service provider that you use for
online access, is current and in good standing.

 

(j) You will not use the Whataburger Online Services 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 use of the Whataburger
Websites Online Services.

 

(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 to process your transactions and deliver the Whataburger Online
Services and as part of our ongoing efforts to detect and deter unauthorized or
fraudulent use of, or abuse of, the Whataburger Online Services, including
MyWhataburger Accounts. If you take steps to modify or disable security settings
or controls provided in the operating system of your mobile device, such as
“jailbreaking” or “rooting” the device, Whataburger may block your device and
terminate your MyWhataburger Account under Section 4.9 below

 

4. MyWhataburger Account Registration.

 

4.1 Your MyWhataburger Account. In order to obtain all of the Whataburger Online
Services, 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. 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®, PayPal® or Google Pay™) you authorize Whataburger to take appropriate
steps to validate your Payment Method 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; Responsibility for Payment Method Account
Activity; 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 an existing third-party account, such as your
Facebook, Google or Apple account, to create your MyWhataburger Account if the
MyWhataburger Account creation process supports such third-party account. If you
use an existing third-party account to create your MyWhataburger Account, then
Whataburger will receive your public profile information (which may include your
first and last name, email address, profile page information, gender and date of
birth), and, if your existing third-party account has a profile picture
associated with it, then your current profile picture will also be included in
your MyWhataburger Account. In addition, if you use an existing third-party
account to create your MyWhataburger Account, then you will not be able to
unlink that third-party account from your MyWhataburger Account. If you use an
existing third-party account to create your MyWhataburger Account, then 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®, PayPal® 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:

 

Online: whataburger.com/contact-us

 

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 Information 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
whataburger.com/home/privacypolicy. Our Privacy Policy applies to (a) personal
information collected from or provided by you through the Whataburger Online
Services, and (b) for Whataburger Online Gift Card Recipients, personal
information collected from or provided about you by the purchaser and sender of
your Whataburger Online Gift Card (see Section 4.6 below). 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 Whataburger 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 Whataburger 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.

 

For Whataburger Online Gift Card Recipients, you understand that Whataburger
will send you the Online Gift Card notification email, as well as additional
emails or Mobile App communications: (i) reminding you to use your Online Gift
Card funds; (ii) containing Online Gift Card balance updates; (iii) asking you
about your Online Gift Card and Whataburger experience; and (iv) marketing
messages, ads or offers

 

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 an existing third-party account, such as a Facebook,
Google or Apple account, then your Login Credentials will be the username you
establish for the MyWhataburger Account and your the password associated with
that existing third-party account. 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 Physical and Virtual Gift Cards; Online Gift Cards Sent as Gifts. (a)
Whataburger may allow you to purchase virtual Whataburger gift cards
(“Whataburger Virtual Gift Cards” or “Virtual Gift Cards”) through your
MyWhataburger Account for your own use. Whataburger may allow you to transfer
funds from physical Whataburger gift cards you purchase or receive as a gift
(“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.

 

Please note that Virtual or Physical Gift Cards may not be used to purchase
anything from the Whataburger Store (shop.whataburger.com).

(b) Whataburger allows MyWhataburger Account holders who are also registered for
the Whataburger Rewards Program to purchase virtual Whataburger gift cards
(through the Whataburger Websites and in the Mobile App) to send to other
individuals (“Online Gift Cards”). You understand that to purchase and send an
Online Gift Card to another individual (the “Recipient”), you must select the
“Send an Online Gift Card” or similar feature in the Whataburger Websites or
Mobile App, and you will be asked to: (i) choose an Online Gift Card design;
(ii) designate the amount of funds you want to load onto the Online Gift Card;
(iii) provide the Recipient’s name, email address, and an optional message to
the Recipient; (iv) provide your name and email address; (v) select a delivery
time for either delivery at time of purchase or at a later date and time
selected by you; (vi) review your Online Gift Card order, confirm and pay.
Please note that you must use an approved Payment Method for purchasing and
sending Online Gift Cards to Recipients, and that you may not use funds already
loaded into your MyWhataburger Account (which are loaded onto your personal
Whataburger Virtual Gift Card for your MyWhataburger Account) or funds loaded
onto a Physical Whataburger Gift Card for such purchases. You authorize us to
charge your Payment Method at the time you purchase the Online Gift Card
regardless of the date you choose for delivery. Whataburger will require a
minimum purchase amount for each Online Gift Card of $15 and a maximum purchase
limit of $100, and you as a purchaser may purchase no more than a total of $500
of Online Gift Cards per day. On the requested delivery date, we will send the
Recipient of your Online Gift Card an email notifying them that they have
received an Online Gift Card from you. We will send you an email confirmation
after each Online Gift Card transaction to let you know your payment was
processed, the Online Gift Card was sent to the Recipient, and containing
transaction receipt details for your purchase. Each Online Gift Card purchase
transaction will appear on your Payment Method account statement as “Whataburger
Digital Sale” or “Whataburger Mobile Sale.” An Online Gift Card is like any
other Whataburger Physical Gift Card and should be treated like cash by the
Recipient. Refunds only provided for unused Online Gift Cards with the original
purchase receipt.

(c) If you are the Recipient of an Online Gift Card, you will receive an email
notification that the purchaser sent you a Whataburger Online Gift Card. Your
email notification will contain: (i) the name and email address of the sender;
(ii) a link to transfer the Online Gift Card balance to your MyWhataburger
Account; (iii) the unique QR code for your Online Gift Card; (iv) a link for you
to access your Online Gift Card balance; (v) the terms and conditions of use of
your Online Gift Card; and (vi) a statement that you understand that by using
the Online Gift Card you are also agreeing to these Whataburger Online Services
Terms and Conditions and the Whataburger Privacy Policy. The dollar value that
you receive on your Online Gift Card is a prepayment for the goods and services
you purchase at participating Whataburger locations. If you either already have
an existing MyWhataburger Account or create a MyWhataburger Account, you can
transfer funds from the Online Gift Card you receive to your MyWhataburger
Account. If you do not have a MyWhataburger Account or choose not to create a
new MyWhataburger Account, you will be able to use your Online Gift Card via the
unique QR code contained in the link included in the email notification that you
receive regarding your Online Gift Card. The Online Gift Card can be used as a
Payment Method for Online Ordering and at participating Whataburger locations
through either your MyWhataburger Account or the unique QR Code you are sent.
The Online Gift Card itself is not reloadable, but if you either have or create
a MyWhataburger Account, you may use that account as otherwise set forth in this
Agreement. An Online Gift Card is like any other Whataburger Physical Gift Card
and should be treated like cash by the you as the Recipient. The dollar value of
an Online Gift Card is nonrefundable and may not be redeemed for cash (except
where required by law).

 

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. In accordance with your
cardholder or other agreement governing your Payment Method and the terms of
service you have entered into with your financial institution or other
third-party payment provider (including, but not limited to, your debit card,
credit card, or other third-party mobile wallet or payment provider (such as
Apple Pay®, PayPal® or Google Pay™) Payment Method account), you agree that you
are responsible for any payment transactions from any person you have authorized
to use your MyWhataburger Account at any time. If you are using the Payment
Method account of a family member or relative or any other individual in
conjunction with your MyWhataburger Account, you are representing to us that the
Payment Method account holder is aware of your use of their Payment Method
account for your MyWhataburger Account. If you make claims to us of
unauthorized, unrecognized or otherwise alleged fraudulent Payment Method
account or Whataburger Online Services transactions, your claim is equivalent to
reporting a financial crime to law enforcement. Individuals found to be
associated with fraudulent Payment Method account or Whataburger Online Services
transactions can be pursued to the fullest extent of the law. If you choose to
participate in and you opt into the MyWhataburger Account facial recognition
payment authorization feature known as “POP ID” for point-of-purchase
transaction authorization, redeeming MyWhataburger Rewards™ and earning
MyWhataburger Rewards™ points at in-store point-of-sale, in-store kiosk, and
drive-through locations where such optional feature is available, then your
agreement to complete a transaction, redeem MyWhataburter Rewards™ or earn
MyWhataburger Rewards™ points using such facial recognition technology
constitutes your authorization for a transaction.

 

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:

 

Online: whataburger.com/contact-us

 

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; Modified Mobile Device Security Settings.
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 purposes, 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. Whataburger also
reserves the right to suspend and/or terminate your MyWhataburger Account if you
modify or disable security settings or controls provided in the operating system
of your mobile device, such as “jailbreaking” or “rooting” the device.

 

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 App 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 the payment
functionality 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 method, which may include take out, dine in, drive thru or delivery
service. Pickup methods may vary by location. You must also select a pickup or
delivery time, which may be as soon as possible or for a scheduled time. For
delivery service orders, the delivery time you select will determine when your
order is prepared at the designated Whataburger location. For Large Orders (as
defined below) placed through the Mobile App for pickup, the pickup time you
select will determine when your order is prepared at the designated Whataburger
location. A “Large Order” is any order where the total cost of the order is $80
or more. For pickup orders placed through the Whataburger Website(s) or the
Whataburger Mobile App that are not Large Orders, 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 “ASAP” button on the
Whataburger Website(s) or 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 “ASAP” order is placed, changes
cannot be made to the order.

 

If you place a delivery order, an Online Order through the Whataburger
Website(s), or your order is a Large Order placed through the Mobile App, the
preparation of your order will start based on the delivery time or pickup time
you select, as applicable. For pickup orders, if you arrive early to pick up an
order placed through the Whataburger Website(s) or a Large Order placed through
the Mobile App, 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 for pickup through the Whataburger Mobile App, and your order is not a
Large Order, the preparation of your order will start when you select the “ASAP”
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
“ASAP” button within 24 hours of placing your Online Order for pickup through
the Mobile App, your order will be cancelled. The “ASAP” button is not available
on Large Orders placed through the Mobile App.

 

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.

 

It is your responsibility to timely pick up all non-delivery orders. If an order
is not timely picked up or initially delivered, Whataburger may remake your food
when you or the delivery driver 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 “ASAP”
button, 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.

 

In some locations, you may be able to place an order for delivery. To place a
delivery order, you must provide a delivery address (physical address only) and
phone number where you can be contacted. Delivery service is not available in
all Whataburger locations. Delivery service hours may be limited and may vary.
Whataburger and its delivery service third-party service providers reserve the
right to accept or decline an order for delivery for any reason up until the
time the order is actually delivered to you. You acknowledge and agree that
delivery times may vary and that Whataburger makes no warranty or guarantee with
respect to when your order will be delivered. You agree that your delivery
request (where available) may be fulfilled by a third party service provider in
Whataburger’s discretion. You may add a tip for your delivery driver before you
place your order. The Whataburger delivery charge is not a tip or gratuity
provided to the delivery driver.

 

If you desire to seek a refund for any reason, including if the products are
unsatisfactory or other reasons, please contact us online at
whataburger.com/contact-us. 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 Whataburger Online Services. 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 Whataburger Online Services, 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 Whataburger Online Services in any manner
that would interfere with the rights of any third party; (d) take any action
that could compromise the security of the Whataburger Online Services; (e)
violate the restrictions in any robot exclusion headers in any aspect of the
Whataburger Online Services, work around, bypass, or circumvent any of the
technical limitations of the Whataburger Online Services, use any tool to enable
disabled features or functionalities of the Whataburger Online Services, or
decompile, disassemble or otherwise reverse engineer the Whataburger Online
Services; (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 Whataburger Online Services, prevent access to or use of the Whataburger
Online Services 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) encourage any
conduct that would constitute a criminal offense or that gives rise to civil
liability; (i) violate these Terms; (j) attempt 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 Whataburger Online Services 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 Whataburger Online Services, remove any content,
or assert legal action with respect to any content or use of the Whataburger
Online Services 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 Whataburger Online Services, 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
Whataburger Online Services, 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 Whataburger Online Services, 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 Whataburger Online Services (“User Content”). You represent
that you will not contribute User Content to the Whataburger Online Services
unless you have created it or have express permission from the creator or
copyright owner to do so. By contributing User Content to the Whataburger Online
Services, 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, tweet or other social
media communication (“User Post”), 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 User Post, you
agree that we may, at our discretion, use your real or social media user name
and the content of your User Post (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 User Post 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
User 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 contacting us online at whataburger.com/contact-us. We will remove your
User Post (including accompanying images) reasonably promptly after receiving
your email.

 

(c) You may not, and you represent and warrant that you will not, contribute any
User Content or User Post 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 Whataburger Online Services, or which may expose Whataburger, its parents,
subsidiaries, affiliates or other Whataburger Online Services users to harm or
liability; (viii) is an impersonation of, or attempt to impersonate, another
person; or (ix) violates a copyright or other intellectual property right of any
third party. Whataburger reserves the right, but shall have no obligation to,
screen, edit, remove or disable any User Content or User Post at any time and
for any reason without notice. You acknowledge that by using the Whataburger
Online Services, you may be exposed to User Content or User Posts that are
offensive, indecent or objectionable. Whataburger has no duty to pre-screen User
Generated Data, User Content or User Posts. Whataburger has the right to edit,
remove, block or refuse to post any submitted User Generated Data, User Content
or User Post from any Whataburger Website(s) or network 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 or User Post
posted by you or others, and Whataburger expressly disclaims any and all
liability in connection with any User Content, User Posts 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
Whataburger Online Services. 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 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 permission applies to calls and messages regarding the Whataburger
payment transaction, the Whataburger 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. In addition, if you choose to receive marketing messages
from Whataburger via SMS text messages, Whataburger will collect separate
permission from you in the Mobile App regarding your authorization for
Whataburger to send such marketing messages via SMS text message.

 

Whataburger will send in-app 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
Whataburger Website(s) 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 Whataburger
Online Services, 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. MyWhataburger Loyalty and Rewards Program (“MyWhataburger Rewards™”)

 

(a) MyWhataburger Rewards™ Program . Beginning on February 14, 2023 on a
go-forward basis, the former “Whataburger Rewards” program is renamed the
MyWhataburger Rewards™” program. MyWhataburger Rewards™ is the loyalty and
rewards program operated by Whataburger as part of the MyWhataburger Account,
and “MyWhataburger Points” are loyalty “points” that entitle a MyWhataburger
Rewards™ program member to MyWhataburger Rewards™ benefits (“Rewards”) at
participating Whataburger locations. Please note that when you initially
register for a MyWhataburger Account, you will be automatically enrolled in the
MyWhataburger Rewards™ program if you provide either your email address or your
mobile device number. If you choose to opt out of the MyWhataburger Rewards™
program, you may do so as detailed in Section 8.2(g) below.

 

Whataburger reserves the right to change, update, modify, and/or discontinue the
MyWhataburger Rewards™ program (in whole or in part, and including material
components such as dollar value of MyWhataburger Rewards™ points themselves, and
the number of points required to redeem Rewards) at any time and in its sole
discretion and without advanced notice to MyWhataburger Rewards™ program
members. Unless otherwise specified, any changes or modifications to the
MyWhataburger Rewards™ program will be effective immediately upon posting the
revisions to these Terms, and you waive any right you may have to receive
specific notice of such changes or modifications. If you continue to participate
in the MyWhataburger Rewards™ program by earning points, redeeming points,
logging into your MyWhataburger Account or otherwise participating in the
MyWhataburger Rewards™ program in any way after a change to these Terms
regarding the MyWhataburger Rewards™ program, you will be deemed to have read,
understood and unconditionally consented and agreed to such changes. If you do
not agree to these Terms or any changes, you must stop participating in the
MyWhataburger Rewards™ program.

 

By joining MyWhataburger Rewards™ program, you agree to remain courteous and
respectful toward employees, contractors, and agents of Whataburger, its
affiliates, franchisees, partners and other Whataburger customers. You agree not
to harass, abuse, stalk, intimidate, threaten or engage in any conduct that
harms, harasses, or offends any employees, contractors or agents of Whataburger,
its affiliates, franchisees, or partners engaged in the provision of services,
including the delivery of any orders, or any other Whataburger customers or
third parties. If you violate these provisions or engage in any fraud or abuse
in use of the MyWhataburger Rewards™ Program, Whataburger may terminate your
membership in the program, bar you from future participation in the program, and
cancel any unredeemed points and other benefits.

 

Any Whataburger Rewards members in existence as of February 14, 2023 shall be
automatically enrolled in the new MyWhataburger Rewards™ program, and conversion
of any existing Rewards earned but not yet redeemed as of February 14, 2023
shall be as described in Section 8.2(i) below. You always have the right to
cancel your optional participation in the MyWhataburger Rewards™ program as
detailed in Section 8.2(g) below.

 

MyWhataburger 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 MyWhataburger Rewards™
points that may be redeemed for Rewards at participating Whataburger locations.
Unfortunately, not all locations have the ability to award or honor
MyWhataburger Rewards™ at this time. For example, you cannot earn or redeem
MyWhataburger Rewards™ at non-participating Whataburger locations.

 

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

 

(b) MyWhataburger Rewards™ Points and Benefits. The benefits that are available
to you through MyWhataburger Rewards are based on the number of points you earn
from food purchase (including beverages) purchases at participating Whataburger
locations. You will earn ten (10) MyWhataburger Rewards™ points for each dollar
you spend (based on sales total prior to tax) at participating Whataburger
locations (e.g. $1 = 10 points). MyWhataburger Rewards™ points are automatically
tracked in your MyWhataburger Account at the time of purchase at participating
Whataburger locations, beginning with the first purchase after your
MyWhataburger Rewards™ program account is created and activated. Points may only
be credited to one (1) MyWhataburger Account. Points will be credited to your
MyWhataburger Account upon consummation of qualifying purchases. In certain
cases, it may take twenty-four (24) hours or more for points to be credited to
your MyWhataburger Account. Whataburger shall not be responsible for, or liable
to, any MyWhataburger Rewards™ program member, or any other person or entity, in
any way, for any losses, costs or expenses incurred by a delay or error in
crediting points or to a MyWhataburger Account. To make a purchase that earns
points, you must (a) scan the barcode in the MyWhataburger 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 MyWhataburger Rewards™ Points. Some purchase exclusions apply. For
instance, you cannot earn MyWhataburger Rewards™ points 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. Taxes, tips, donations, and fees are also excluded or
ineligible for Whataburger Rewards points accrual. In-restaurant purchases made
under Whataburger’s Group Dining Program and any purchases where a Whataburger
coupon is applied are also excluded from points accrual. For clarification, any
orders made on third-party food delivery platforms (e.g. DoorDash, Grubhub,
UberEats, Favor, etc.), or orders placed on behalf of third-party aggregators do
not constitute purchases for the purpose of earning MyWhataburger Rewards™
points. You will not receive MyWhataburger Rewards™ points for any amounts paid
in delivery fees, surcharges, gratuity, sales, use or other transactional taxes.
In the event that you complete a transaction but forget to use the Mobile App at
the time of purchase, you may submit your receipt details for validation up to
30 days from the receipt transaction date either (a) in person at any
participating Whataburger location, or (b) using the “Add Points” function in
the Mobile App or Whataburger Website(s) to submit your receipt details. If the
receipt data you submit is validated by Whataburger as qualifying purchases that
earn MyWhataburger Rewards™ points, the points will be added to your
MyWhataburger Rewards™ account generally within 48 hours of your submission of
receipt detail information.

 

(e) Point Redemption for Rewards. You may redeem MyWhataburger Rewards™ points
for the specific menu items that Whataburger, in its sole discretion, may make
available for MyWhataburger Rewards™ points redemption (each a “Reward”). A list
of current menu items and the corresponding points redemption amounts required
for each listed menu item is available in the Mobile App and at the Whataburger
Website at www.whataburger.com. Point redemption for Rewards is subject to
availability, and Rewards may not be redeemed in combination with other
promotions, special offers, discounts or coupons unless specifically allowed
under the terms of a specific promotion. MyWhataburger Rewards™ points may not
be redeemed for Whataburger retail products, Whataburger merchandise,
Whataburger gift cards, or cash. You must access the “MyWhataburger Rewards™”
section of the Whataburger Website or the Mobile App to view your MyWhataburger
Rewards™ program points available for redemption, and then select to redeem a
Reward for the corresponding points value. Points may be redeemed for Rewards
worth a minimum of 225 points or more, and you must have at least enough
available points for the Reward you select. In any single transaction, only one
MyWhataburger Account may be used to redeem points for Rewards. Points cannot be
redeemed for Rewards through any third party platforms. Determination regarding
the redemption of points for Rewards is subject to Whataburger’s sole
discretion. Points will be subtracted from your MyWhataburger Rewards™ program
point total immediately when a Reward is requested based on the total points for
the requested Reward. Whataburger reserves the right to limit the redemption of
specific Rewards and limit the number of Rewards available. Attempts to redeem
single use offers and verification codes for Rewards multiple times or through
multiple users constitutes fraud and may result in the termination or suspension
of your MyWhataburger Rewards™ program account.

 

(f) Special MyWhataburger Rewards Program Member Benefits. Whataburger and
participating Whataburger locations, in their sole and absolute discretion, may
periodically offer the opportunity for additional MyWhataburger Rewards™ program
rewards or benefits on particular transactions or special offers (“Member
Benefits”). Member Benefits may be distributed via the Mobile App, via the
Website or via e-mail or mail from time to time (based on the information you
have in your MyWhataburger Account). Member Benefits may include periodic
promotional offers on food, beverages and merchandise, invitations to special
events, personalized Rewards, exclusive MyWhataburger Rewards™ program member
experiences, family friend events, or related benefits. You must have your
Mobile App set to receive notifications and/or have opted-in to receive email
communications in order to receive promotional and marketing offers in the
Mobile App or via e-mail. Member Benefits may be customized (e.g. based on your
qualifying purchases, preferences, geographic location, etc.). In certain
events, Member Benefits may require that you have location settings enabled for
the Member Benefits to be distributed to your Mobile App. Please note that
Whataburger and participating Whataburger locations may be unable to send these
Member Benefits to you if you have turned off your notifications or location
settings in the Mobile App; if you have elected not to receive email or other
communications from Whataburger; or if you have poor network connectivity.
Member Benefits may have certain restrictions including expiration dates and
short, time-limited redemption periods. Member Benefits are personal to you and
cannot be shared, copied or transferred, except as Whataburger may allow in
certain limited instances. You may be required to present your MyWhataburger
Rewards™ account information at the participating Whataburger location in order
to redeem Member Benefits. Read each offer carefully for specific details,
limitations and restrictions.

 

(g) Cancellation; Termination. You may opt-out of the MyWhataburger Rewards™
program at any time, for any reason by cancelling your MyWhataburger Rewards™
account, or by visiting https://whataburger.com/contact-us. If you cancel your
MyWhataburger Rewards™ account, any unredeemed points, Rewards and Member
Benefits, will automatically be cancelled and will no longer be available for
redemption. If you re-enroll at any time, you will start over as if you had just
established your MyWhataburger Rewards™ account for the first time. Whataburger
reserves the right to suspend or terminate, at Whataburger’s sole and absolute
discretion, any MyWhataburger Rewards™ account if Whataburger believes you have
abused Whataburger privileges, have violated or acted inconsistently with these
Terms or applicable law, or otherwise acted in a manner harmful to Whataburger’s
interests.

 

(h) Expiration of MyWhataburger Rewards™ Points, Rewards, and Member Benefits;
Inactive Accounts. MyWhataburger Rewards™ points may not be combined with other
offers or coupons, unless specifically allowed under the terms of such other
offers or coupons. Unredeemed points expire (i) one year from the date that such
points were earned, and (ii) upon the cancellation or termination of your
MyWhataburger Rewards™ account as described in Section 8.2(g) above. When you
redeem your points for Rewards, your oldest available points are used first. If
you have any questions regarding your MyWhataburger Rewards™ program account
status, please contact https://whataburger.com/contact-us. Once points either
expire or are used to redeem a Reward, the points will be removed from your
MyWhataburger Rewards™ account. Points will not be added back to your
MyWhataburger Rewards account if you do not redeem the points for a Reward
within one (1) year from the date the points were added to your MyWhataburger
Rewards™ account. Whataburger reserves the right to cancel a your MyWhataburger
Rewards™ program account if your MyWhataburger Rewards™ program account remains
inactive for a period of two (2) years or more. Accordingly, once you register
for the MyWhataburger Rewards™ program account, if you do not make a purchase or
engage in an activity for which you will receive points within two (2) years
after your initial registration or the last recorded purchase or activity for
which you received points, Whataburger reserves the right to cancel your
MyWhataburger Rewards™ account. You understand and agree that cancellation by
Whataburger of your MyWhataburger Rewards™ account will result in the
cancellation of all points, any unredeemed Rewards, and other unredeemed Member
Benefits, and the inability to earn and/or redeem further points, Rewards, and
other Member Benefits.

 

(i) Conversion of Unexpired Whataburger Rewards. If you are an existing
Whataburger Rewards program member, and you have an earned but unredeemed Reward
item as of the February 14, 2023 conversion date, each of your unredeemed
Rewards will be converted to 625 points.

 

(j) Other Restrictions. Whataburger shall be the sole arbiter in cases of
suspected abuse, fraud, or violation of MyWhataburger Rewards™ program Terms,
and any decision Whataburger makes relating to termination, suspension, or other
disabling of the MyWhataburger Rewards™ program or your associated account
(including, but not limited to, cancellation or suspension of points, Rewards,
or other Member Benefits) shall be final and binding. Should you object to any
of these Terms, or any subsequent modifications thereto, or become dissatisfied
with the MyWhataburger Rewards™ program, your sole remedy is to discontinue
participation in the program and properly cancel your account as detailed in
Section 8.2(g) above.

 

(k) Limitations of Liability; Incontestability. IN ADDITION TO THE OTHER
LIMITATION OF LIABILITY PROVISIONS UNDER THESE TERMS, UNDER NO CIRCUMSTANCES
SHALL WHATABURGER, ITS AFFILIATES OR ITS FRANCHISEES BE LIAVLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
MYWHATABURGER REWARDS™ PROGRAM, EVEN IF ANY OR ALL OF THE WHATABURGER ENTITIES,
AFFILIATES OR FRANCHISEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, THEREFOR SUCH EXCLUSIONS MAY NOT APPLY TO YOU. IF A
MYWHATABURGER REWARDS™ PROGRAM MEMBER PROVES THAT WHATABURGER HAS IMPROPERLY
DENIED SUCH PARTICIPANT ANY REWARD OR MEMBER BENEFIT, THEN THE MEMBER’S SOLE AND
EXCLUSIVE REMEDY UNDER SUCH CIRCUMSTANCES WILL BE TO RECEIVE THE EQUIVALENT
REWARD. MEMBER’S IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE RELIEF OR
EQUITABLE RELIEF.

 

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:

 

Online: whataburger.com/contact-us

 

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®, PayPal® 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. In addition, part of the Mobile App is
specifically licensed to Whataburger under one or more of the following United
States patents (as fully described at http://www.35usc287.com/mobile): U.S.
Patent No. 10,102,184; U.S. Patent No. 9,892,093; U.S. Patent No. 9,886,421;
U.S. Patent No. 9,405,735; and U.S. Patent No. 8,522,127.

 

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 a copyright right or other intellectual
property right 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 (or any other intellectual property rights)
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
Whataburger Online Services 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 Whataburger Online Services.

 

13. Termination.

 

13.1 Your Right to Terminate. You may terminate these Terms and your use of the
Whataburger Online Services 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 Whataburger 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
Whataburger 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
Whataburger Online Services the license granted to you under these Terms will
immediately end and you must immediately stop using the Whataburger Online
Services. 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 Whataburger Online Services or in connection with the termination or
suspension of your use of the Whataburger Online Services.

 

14. Disclaimer of Warranties.

 

14.1 Disclaimer of Whataburger Warranties. THE WHATABURGER 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 WHATABURGER
ONLINE SERVICES. 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 WHATABURGER ONLINE SERVICES, ANY CONTENT THEREON
OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE
WHATABURGER ONLINE SERVICES.

 

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 WHATABURGER ONLINE
SERVICES. 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 WHATABURGER
ONLINE SERVICES. 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 WHATABURGER ONLINE SERVICES 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 Whataburger Online Services; (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 Whataburger Online
Services, 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 Whataburger Online Services
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 Whataburger Online
Services (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 Whataburger Online Services or your possession and use of the
Whataburger Online Services 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 controlling the investigation,
defense, settlement and discharge of any such intellectual property infringement
claim.

 

17. Governing Law; Dispute Resolution; Arbitration; Class Action 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.

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE
DISPUTES WITH WHATABURGER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION
AGREEMENT.”

 

ARBITRATION. YOU AND WE EACH AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, INCLUDING ANY QUESTIONS OF
ARBITRABILITY (“DISPUTE”), SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE
AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS CONSUMER
ARBITRATION RULES BY A SOLE ARBITRATOR. You and we each also agree that this
Arbitration Agreement affects interstate commerce so that the Federal
Arbitration Act and federal arbitration law, not state law, apply and govern any
questions regarding the enforceability of this dispute resolution provision,
including all questions of arbitrability (despite the general choice of law
provision set forth below). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT
REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS
ARBITRATION AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT
(INCLUDING ATTORNEYS’ FEES).

 

For any Dispute, you must first give us an opportunity to resolve your claim by
sending a written description of your claim to Whataburger, Inc., ATTN: Legal
Department, 300 Concord Plaza Drive, San Antonio TX 78216. You and we each agree
to negotiate your claim in good faith for a sixty-day period. You further agree
that you may not commence any arbitration or court proceeding unless you and we
are unable to resolve the claim within 60 days after we receive your claim
description and you have made a good faith effort to resolve your claim directly
with us during that time.

 

WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”). YOU AND WE EACH
AGREE THAT YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN
BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR
PURPORTED CLASS, AND NO PROCEEDINGS COMMENCED HEREUNDER MAY BE JOINED WITH OR
INCLUDE ANY OTHER PARTIES, OR CLAIMS BY OTHER PARTIES (WHETHER REPRESENTATIVE,
MASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION). Each party agrees that
this limitation includes, but is not limited to, precluding each party from
pursuing any claim for public injunctive relief, whether in arbitration or
court. If we believe that any claim you have filed is inconsistent with this
limitation, then you agree that we may seek an order from a court determining
whether your claim is within the scope of this class action waiver.

 

If a court or arbitrator determines in an action between you and us that any
part of this Dispute Resolution provision cannot be enforced, the rest of this
Dispute Resolution provision will continue to apply; provided, however, that if
the Class Action Waiver is declared to be unenforceable or invalid, this entire
Dispute Resolution provision (other than this sentence) will not apply to that
claim (but will still apply to any and all other claims that you or we may
assert in that or any other action).

 

 

18. Miscellaneous.

 

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

 

Online: whataburger.com/contact-us

 

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 Whataburger Online Services 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.

 

 

WHATABURGER ONLINE SERVICES E-SIGN DISCLOSURE AND AGREEMENT

 

Effective February 7, 2023

Version 4.0



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 of 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
accepting 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 below in Section 18.1 of the Whataburger Online Services Terms and
Conditions. 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 below. 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

 

If you either (i) use the Whataburger Online Services (either the Whataburger
Website or the Mobile App), or click on the “I Agree” button in 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 either (i) use the Whataburger Online Services (either the Whataburger
Website or the Mobile App), or (ii) click on the “I Agree” button in the
Whataburger Website or Mobile App, such actions evidence your consent to
electronic delivery of disclosures and the following Whataburger Online Services
Terms and Conditions.




 

 

WHATABURGER ONLINE SERVICES TERMS AND CONDITIONS

 

Effective February 7, 2023

Version 4.0

 

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.

 

BY ACCEPTING THESE TERMS, YOU AGREE TO RESOLVE ANY DISPUTE WITH US ARISING OUT
OF OR RELATED TO THESE TERMS THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE
PROCEDURES AND YOU AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION
SUIT. 

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, features and any Whataburger
hosted games or challenges and made available through any Whataburger website,
including, but not limited to whataburger.com, stories.whataburger.com,
shop.whataburger.com, locations.whataburger.com, whataburger.avature.net,
whataburger.taleo.net, whataburgervisit.com, whataburgerfeedback.com,
whatastore.com, and whataburger.app.link (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 for your safety, do not use the Online
Services or Mobile App while driving.

 

2.2 Nutrition Disclaimer. The Whataburger Online Services 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, and may in
turn result 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 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 and
Whataburger Online Services comply, and will continue to comply, with applicable
laws and regulations.

 

(g) You will not use the Whataburger Online Services in connection with any
fraudulent or illegal activity or in any manner which interferes with the
operation of the Whataburger Online Services.

 

(h) You will use the Whataburger Online Services only in compliance with these
Terms.

 

(i) The account with your mobile service provider that you use for the mobile
device, and the account with your internet service provider that you use for
online access, is current and in good standing.

 

(j) You will not use the Whataburger Online Services 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 use of the Whataburger
Websites Online Services.

 

(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 to process your transactions and deliver the Whataburger Online
Services and as part of our ongoing efforts to detect and deter unauthorized or
fraudulent use of, or abuse of, the Whataburger Online Services, including
MyWhataburger Accounts. If you take steps to modify or disable security settings
or controls provided in the operating system of your mobile device, such as
“jailbreaking” or “rooting” the device, Whataburger may block your device and
terminate your MyWhataburger Account under Section 4.9 below

 

4. MyWhataburger Account Registration.

 

4.1 Your MyWhataburger Account. In order to obtain all of the Whataburger Online
Services, 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. 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®, PayPal® or Google Pay™) you authorize Whataburger to take appropriate
steps to validate your Payment Method 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; Responsibility for Payment Method Account
Activity; 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 an existing third-party account, such as your
Facebook, Google or Apple account, to create your MyWhataburger Account if the
MyWhataburger Account creation process supports such third-party account. If you
use an existing third-party account to create your MyWhataburger Account, then
Whataburger will receive your public profile information (which may include your
first and last name, email address, profile page information, gender and date of
birth), and, if your existing third-party account has a profile picture
associated with it, then your current profile picture will also be included in
your MyWhataburger Account. In addition, if you use an existing third-party
account to create your MyWhataburger Account, then you will not be able to
unlink that third-party account from your MyWhataburger Account. If you use an
existing third-party account to create your MyWhataburger Account, then 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®, PayPal® 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:

 

Online: whataburger.com/contact-us

 

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 Information 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
whataburger.com/home/privacypolicy. Our Privacy Policy applies to (a) personal
information collected from or provided by you through the Whataburger Online
Services, and (b) for Whataburger Online Gift Card Recipients, personal
information collected from or provided about you by the purchaser and sender of
your Whataburger Online Gift Card (see Section 4.6 below). 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 Whataburger 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 Whataburger 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.

 

For Whataburger Online Gift Card Recipients, you understand that Whataburger
will send you the Online Gift Card notification email, as well as additional
emails or Mobile App communications: (i) reminding you to use your Online Gift
Card funds; (ii) containing Online Gift Card balance updates; (iii) asking you
about your Online Gift Card and Whataburger experience; and (iv) marketing
messages, ads or offers

 

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 an existing third-party account, such as a Facebook,
Google or Apple account, then your Login Credentials will be the username you
establish for the MyWhataburger Account and your the password associated with
that existing third-party account. 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 Physical and Virtual Gift Cards; Online Gift Cards Sent as Gifts. (a)
Whataburger may allow you to purchase virtual Whataburger gift cards
(“Whataburger Virtual Gift Cards” or “Virtual Gift Cards”) through your
MyWhataburger Account for your own use. Whataburger may allow you to transfer
funds from physical Whataburger gift cards you purchase or receive as a gift
(“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.

 

Please note that Virtual or Physical Gift Cards may not be used to purchase
anything from the Whataburger Store (shop.whataburger.com).

(b) Whataburger allows MyWhataburger Account holders who are also registered for
the Whataburger Rewards Program to purchase virtual Whataburger gift cards
(through the Whataburger Websites and in the Mobile App) to send to other
individuals (“Online Gift Cards”). You understand that to purchase and send an
Online Gift Card to another individual (the “Recipient”), you must select the
“Send an Online Gift Card” or similar feature in the Whataburger Websites or
Mobile App, and you will be asked to: (i) choose an Online Gift Card design;
(ii) designate the amount of funds you want to load onto the Online Gift Card;
(iii) provide the Recipient’s name, email address, and an optional message to
the Recipient; (iv) provide your name and email address; (v) select a delivery
time for either delivery at time of purchase or at a later date and time
selected by you; (vi) review your Online Gift Card order, confirm and pay.
Please note that you must use an approved Payment Method for purchasing and
sending Online Gift Cards to Recipients, and that you may not use funds already
loaded into your MyWhataburger Account (which are loaded onto your personal
Whataburger Virtual Gift Card for your MyWhataburger Account) or funds loaded
onto a Physical Whataburger Gift Card for such purchases. You authorize us to
charge your Payment Method at the time you purchase the Online Gift Card
regardless of the date you choose for delivery. Whataburger will require a
minimum purchase amount for each Online Gift Card of $15 and a maximum purchase
limit of $100, and you as a purchaser may purchase no more than a total of $500
of Online Gift Cards per day. On the requested delivery date, we will send the
Recipient of your Online Gift Card an email notifying them that they have
received an Online Gift Card from you. We will send you an email confirmation
after each Online Gift Card transaction to let you know your payment was
processed, the Online Gift Card was sent to the Recipient, and containing
transaction receipt details for your purchase. Each Online Gift Card purchase
transaction will appear on your Payment Method account statement as “Whataburger
Digital Sale” or “Whataburger Mobile Sale.” An Online Gift Card is like any
other Whataburger Physical Gift Card and should be treated like cash by the
Recipient. Refunds only provided for unused Online Gift Cards with the original
purchase receipt.

(c) If you are the Recipient of an Online Gift Card, you will receive an email
notification that the purchaser sent you a Whataburger Online Gift Card. Your
email notification will contain: (i) the name and email address of the sender;
(ii) a link to transfer the Online Gift Card balance to your MyWhataburger
Account; (iii) the unique QR code for your Online Gift Card; (iv) a link for you
to access your Online Gift Card balance; (v) the terms and conditions of use of
your Online Gift Card; and (vi) a statement that you understand that by using
the Online Gift Card you are also agreeing to these Whataburger Online Services
Terms and Conditions and the Whataburger Privacy Policy. The dollar value that
you receive on your Online Gift Card is a prepayment for the goods and services
you purchase at participating Whataburger locations. If you either already have
an existing MyWhataburger Account or create a MyWhataburger Account, you can
transfer funds from the Online Gift Card you receive to your MyWhataburger
Account. If you do not have a MyWhataburger Account or choose not to create a
new MyWhataburger Account, you will be able to use your Online Gift Card via the
unique QR code contained in the link included in the email notification that you
receive regarding your Online Gift Card. The Online Gift Card can be used as a
Payment Method for Online Ordering and at participating Whataburger locations
through either your MyWhataburger Account or the unique QR Code you are sent.
The Online Gift Card itself is not reloadable, but if you either have or create
a MyWhataburger Account, you may use that account as otherwise set forth in this
Agreement. An Online Gift Card is like any other Whataburger Physical Gift Card
and should be treated like cash by the you as the Recipient. The dollar value of
an Online Gift Card is nonrefundable and may not be redeemed for cash (except
where required by law).

 

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. In accordance with your
cardholder or other agreement governing your Payment Method and the terms of
service you have entered into with your financial institution or other
third-party payment provider (including, but not limited to, your debit card,
credit card, or other third-party mobile wallet or payment provider (such as
Apple Pay®, PayPal® or Google Pay™) Payment Method account), you agree that you
are responsible for any payment transactions from any person you have authorized
to use your MyWhataburger Account at any time. If you are using the Payment
Method account of a family member or relative or any other individual in
conjunction with your MyWhataburger Account, you are representing to us that the
Payment Method account holder is aware of your use of their Payment Method
account for your MyWhataburger Account. If you make claims to us of
unauthorized, unrecognized or otherwise alleged fraudulent Payment Method
account or Whataburger Online Services transactions, your claim is equivalent to
reporting a financial crime to law enforcement. Individuals found to be
associated with fraudulent Payment Method account or Whataburger Online Services
transactions can be pursued to the fullest extent of the law. If you choose to
participate in and you opt into the MyWhataburger Account facial recognition
payment authorization feature known as “POP ID” for point-of-purchase
transaction authorization, redeeming MyWhataburger Rewards™ and earning
MyWhataburger Rewards™ points at in-store point-of-sale, in-store kiosk, and
drive-through locations where such optional feature is available, then your
agreement to complete a transaction, redeem MyWhataburter Rewards™ or earn
MyWhataburger Rewards™ points using such facial recognition technology
constitutes your authorization for a transaction.

 

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:

 

Online: whataburger.com/contact-us

 

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; Modified Mobile Device Security Settings.
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 purposes, 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. Whataburger also
reserves the right to suspend and/or terminate your MyWhataburger Account if you
modify or disable security settings or controls provided in the operating system
of your mobile device, such as “jailbreaking” or “rooting” the device.

 

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 App 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 the payment
functionality 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 method, which may include take out, dine in, drive thru or delivery
service. Pickup methods may vary by location. You must also select a pickup or
delivery time, which may be as soon as possible or for a scheduled time. For
delivery service orders, the delivery time you select will determine when your
order is prepared at the designated Whataburger location. For Large Orders (as
defined below) placed through the Mobile App for pickup, the pickup time you
select will determine when your order is prepared at the designated Whataburger
location. A “Large Order” is any order where the total cost of the order is $80
or more. For pickup orders placed through the Whataburger Website(s) or the
Whataburger Mobile App that are not Large Orders, 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 “ASAP” button on the
Whataburger Website(s) or 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 “ASAP” order is placed, changes
cannot be made to the order.

 

If you place a delivery order, an Online Order through the Whataburger
Website(s), or your order is a Large Order placed through the Mobile App, the
preparation of your order will start based on the delivery time or pickup time
you select, as applicable. For pickup orders, if you arrive early to pick up an
order placed through the Whataburger Website(s) or a Large Order placed through
the Mobile App, 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 for pickup through the Whataburger Mobile App, and your order is not a
Large Order, the preparation of your order will start when you select the “ASAP”
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
“ASAP” button within 24 hours of placing your Online Order for pickup through
the Mobile App, your order will be cancelled. The “ASAP” button is not available
on Large Orders placed through the Mobile App.

 

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.

 

It is your responsibility to timely pick up all non-delivery orders. If an order
is not timely picked up or initially delivered, Whataburger may remake your food
when you or the delivery driver 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 “ASAP”
button, 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.

 

In some locations, you may be able to place an order for delivery. To place a
delivery order, you must provide a delivery address (physical address only) and
phone number where you can be contacted. Delivery service is not available in
all Whataburger locations. Delivery service hours may be limited and may vary.
Whataburger and its delivery service third-party service providers reserve the
right to accept or decline an order for delivery for any reason up until the
time the order is actually delivered to you. You acknowledge and agree that
delivery times may vary and that Whataburger makes no warranty or guarantee with
respect to when your order will be delivered. You agree that your delivery
request (where available) may be fulfilled by a third party service provider in
Whataburger’s discretion. You may add a tip for your delivery driver before you
place your order. The Whataburger delivery charge is not a tip or gratuity
provided to the delivery driver.

 

If you desire to seek a refund for any reason, including if the products are
unsatisfactory or other reasons, please contact us online at
whataburger.com/contact-us. 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 Whataburger Online Services. 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 Whataburger Online Services, 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 Whataburger Online Services in any manner
that would interfere with the rights of any third party; (d) take any action
that could compromise the security of the Whataburger Online Services; (e)
violate the restrictions in any robot exclusion headers in any aspect of the
Whataburger Online Services, work around, bypass, or circumvent any of the
technical limitations of the Whataburger Online Services, use any tool to enable
disabled features or functionalities of the Whataburger Online Services, or
decompile, disassemble or otherwise reverse engineer the Whataburger Online
Services; (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 Whataburger Online Services, prevent access to or use of the Whataburger
Online Services 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) encourage any
conduct that would constitute a criminal offense or that gives rise to civil
liability; (i) violate these Terms; (j) attempt 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 Whataburger Online Services 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 Whataburger Online Services, remove any content,
or assert legal action with respect to any content or use of the Whataburger
Online Services 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 Whataburger Online Services, 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
Whataburger Online Services, 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 Whataburger Online Services, 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 Whataburger Online Services (“User Content”). You represent
that you will not contribute User Content to the Whataburger Online Services
unless you have created it or have express permission from the creator or
copyright owner to do so. By contributing User Content to the Whataburger Online
Services, 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, tweet or other social
media communication (“User Post”), 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 User Post, you
agree that we may, at our discretion, use your real or social media user name
and the content of your User Post (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 User Post 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
User 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 contacting us online at whataburger.com/contact-us. We will remove your
User Post (including accompanying images) reasonably promptly after receiving
your email.

 

(c) You may not, and you represent and warrant that you will not, contribute any
User Content or User Post 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 Whataburger Online Services, or which may expose Whataburger, its parents,
subsidiaries, affiliates or other Whataburger Online Services users to harm or
liability; (viii) is an impersonation of, or attempt to impersonate, another
person; or (ix) violates a copyright or other intellectual property right of any
third party. Whataburger reserves the right, but shall have no obligation to,
screen, edit, remove or disable any User Content or User Post at any time and
for any reason without notice. You acknowledge that by using the Whataburger
Online Services, you may be exposed to User Content or User Posts that are
offensive, indecent or objectionable. Whataburger has no duty to pre-screen User
Generated Data, User Content or User Posts. Whataburger has the right to edit,
remove, block or refuse to post any submitted User Generated Data, User Content
or User Post from any Whataburger Website(s) or network 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 or User Post
posted by you or others, and Whataburger expressly disclaims any and all
liability in connection with any User Content, User Posts 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
Whataburger Online Services. 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 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 permission applies to calls and messages regarding the Whataburger
payment transaction, the Whataburger 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. In addition, if you choose to receive marketing messages
from Whataburger via SMS text messages, Whataburger will collect separate
permission from you in the Mobile App regarding your authorization for
Whataburger to send such marketing messages via SMS text message.

 

Whataburger will send in-app 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
Whataburger Website(s) 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 Whataburger
Online Services, 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. MyWhataburger Loyalty and Rewards Program (“MyWhataburger Rewards™”)

 

(a) MyWhataburger Rewards™ Program . Beginning on February 14, 2023 on a
go-forward basis, the former “Whataburger Rewards” program is renamed the
MyWhataburger Rewards™” program. MyWhataburger Rewards™ is the loyalty and
rewards program operated by Whataburger as part of the MyWhataburger Account,
and “MyWhataburger Points” are loyalty “points” that entitle a MyWhataburger
Rewards™ program member to MyWhataburger Rewards™ benefits (“Rewards”) at
participating Whataburger locations. Please note that when you initially
register for a MyWhataburger Account, you will be automatically enrolled in the
MyWhataburger Rewards™ program if you provide either your email address or your
mobile device number. If you choose to opt out of the MyWhataburger Rewards™
program, you may do so as detailed in Section 8.2(g) below.

 

Whataburger reserves the right to change, update, modify, and/or discontinue the
MyWhataburger Rewards™ program (in whole or in part, and including material
components such as dollar value of MyWhataburger Rewards™ points themselves, and
the number of points required to redeem Rewards) at any time and in its sole
discretion and without advanced notice to MyWhataburger Rewards™ program
members. Unless otherwise specified, any changes or modifications to the
MyWhataburger Rewards™ program will be effective immediately upon posting the
revisions to these Terms, and you waive any right you may have to receive
specific notice of such changes or modifications. If you continue to participate
in the MyWhataburger Rewards™ program by earning points, redeeming points,
logging into your MyWhataburger Account or otherwise participating in the
MyWhataburger Rewards™ program in any way after a change to these Terms
regarding the MyWhataburger Rewards™ program, you will be deemed to have read,
understood and unconditionally consented and agreed to such changes. If you do
not agree to these Terms or any changes, you must stop participating in the
MyWhataburger Rewards™ program.

 

By joining MyWhataburger Rewards™ program, you agree to remain courteous and
respectful toward employees, contractors, and agents of Whataburger, its
affiliates, franchisees, partners and other Whataburger customers. You agree not
to harass, abuse, stalk, intimidate, threaten or engage in any conduct that
harms, harasses, or offends any employees, contractors or agents of Whataburger,
its affiliates, franchisees, or partners engaged in the provision of services,
including the delivery of any orders, or any other Whataburger customers or
third parties. If you violate these provisions or engage in any fraud or abuse
in use of the MyWhataburger Rewards™ Program, Whataburger may terminate your
membership in the program, bar you from future participation in the program, and
cancel any unredeemed points and other benefits.

 

Any Whataburger Rewards members in existence as of February 14, 2023 shall be
automatically enrolled in the new MyWhataburger Rewards™ program, and conversion
of any existing Rewards earned but not yet redeemed as of February 14, 2023
shall be as described in Section 8.2(i) below. You always have the right to
cancel your optional participation in the MyWhataburger Rewards™ program as
detailed in Section 8.2(g) below.

 

MyWhataburger 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 MyWhataburger Rewards™
points that may be redeemed for Rewards at participating Whataburger locations.
Unfortunately, not all locations have the ability to award or honor
MyWhataburger Rewards™ at this time. For example, you cannot earn or redeem
MyWhataburger Rewards™ at non-participating Whataburger locations.

 

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

 

(b) MyWhataburger Rewards™ Points and Benefits. The benefits that are available
to you through MyWhataburger Rewards are based on the number of points you earn
from food purchase (including beverages) purchases at participating Whataburger
locations. You will earn ten (10) MyWhataburger Rewards™ points for each dollar
you spend (based on sales total prior to tax) at participating Whataburger
locations (e.g. $1 = 10 points). MyWhataburger Rewards™ points are automatically
tracked in your MyWhataburger Account at the time of purchase at participating
Whataburger locations, beginning with the first purchase after your
MyWhataburger Rewards™ program account is created and activated. Points may only
be credited to one (1) MyWhataburger Account. Points will be credited to your
MyWhataburger Account upon consummation of qualifying purchases. In certain
cases, it may take twenty-four (24) hours or more for points to be credited to
your MyWhataburger Account. Whataburger shall not be responsible for, or liable
to, any MyWhataburger Rewards™ program member, or any other person or entity, in
any way, for any losses, costs or expenses incurred by a delay or error in
crediting points or to a MyWhataburger Account. To make a purchase that earns
points, you must (a) scan the barcode in the MyWhataburger 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 MyWhataburger Rewards™ Points. Some purchase exclusions apply. For
instance, you cannot earn MyWhataburger Rewards™ points 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. Taxes, tips, donations, and fees are also excluded or
ineligible for Whataburger Rewards points accrual. In-restaurant purchases made
under Whataburger’s Group Dining Program and any purchases where a Whataburger
coupon is applied are also excluded from points accrual. For clarification, any
orders made on third-party food delivery platforms (e.g. DoorDash, Grubhub,
UberEats, Favor, etc.), or orders placed on behalf of third-party aggregators do
not constitute purchases for the purpose of earning MyWhataburger Rewards™
points. You will not receive MyWhataburger Rewards™ points for any amounts paid
in delivery fees, surcharges, gratuity, sales, use or other transactional taxes.
In the event that you complete a transaction but forget to use the Mobile App at
the time of purchase, you may submit your receipt details for validation up to
30 days from the receipt transaction date either (a) in person at any
participating Whataburger location, or (b) using the “Add Points” function in
the Mobile App or Whataburger Website(s) to submit your receipt details. If the
receipt data you submit is validated by Whataburger as qualifying purchases that
earn MyWhataburger Rewards™ points, the points will be added to your
MyWhataburger Rewards™ account generally within 48 hours of your submission of
receipt detail information.

 

(e) Point Redemption for Rewards. You may redeem MyWhataburger Rewards™ points
for the specific menu items that Whataburger, in its sole discretion, may make
available for MyWhataburger Rewards™ points redemption (each a “Reward”). A list
of current menu items and the corresponding points redemption amounts required
for each listed menu item is available in the Mobile App and at the Whataburger
Website at www.whataburger.com. Point redemption for Rewards is subject to
availability, and Rewards may not be redeemed in combination with other
promotions, special offers, discounts or coupons unless specifically allowed
under the terms of a specific promotion. MyWhataburger Rewards™ points may not
be redeemed for Whataburger retail products, Whataburger merchandise,
Whataburger gift cards, or cash. You must access the “MyWhataburger Rewards™”
section of the Whataburger Website or the Mobile App to view your MyWhataburger
Rewards™ program points available for redemption, and then select to redeem a
Reward for the corresponding points value. Points may be redeemed for Rewards
worth a minimum of 225 points or more, and you must have at least enough
available points for the Reward you select. In any single transaction, only one
MyWhataburger Account may be used to redeem points for Rewards. Points cannot be
redeemed for Rewards through any third party platforms. Determination regarding
the redemption of points for Rewards is subject to Whataburger’s sole
discretion. Points will be subtracted from your MyWhataburger Rewards™ program
point total immediately when a Reward is requested based on the total points for
the requested Reward. Whataburger reserves the right to limit the redemption of
specific Rewards and limit the number of Rewards available. Attempts to redeem
single use offers and verification codes for Rewards multiple times or through
multiple users constitutes fraud and may result in the termination or suspension
of your MyWhataburger Rewards™ program account.

 

(f) Special MyWhataburger Rewards Program Member Benefits. Whataburger and
participating Whataburger locations, in their sole and absolute discretion, may
periodically offer the opportunity for additional MyWhataburger Rewards™ program
rewards or benefits on particular transactions or special offers (“Member
Benefits”). Member Benefits may be distributed via the Mobile App, via the
Website or via e-mail or mail from time to time (based on the information you
have in your MyWhataburger Account). Member Benefits may include periodic
promotional offers on food, beverages and merchandise, invitations to special
events, personalized Rewards, exclusive MyWhataburger Rewards™ program member
experiences, family friend events, or related benefits. You must have your
Mobile App set to receive notifications and/or have opted-in to receive email
communications in order to receive promotional and marketing offers in the
Mobile App or via e-mail. Member Benefits may be customized (e.g. based on your
qualifying purchases, preferences, geographic location, etc.). In certain
events, Member Benefits may require that you have location settings enabled for
the Member Benefits to be distributed to your Mobile App. Please note that
Whataburger and participating Whataburger locations may be unable to send these
Member Benefits to you if you have turned off your notifications or location
settings in the Mobile App; if you have elected not to receive email or other
communications from Whataburger; or if you have poor network connectivity.
Member Benefits may have certain restrictions including expiration dates and
short, time-limited redemption periods. Member Benefits are personal to you and
cannot be shared, copied or transferred, except as Whataburger may allow in
certain limited instances. You may be required to present your MyWhataburger
Rewards™ account information at the participating Whataburger location in order
to redeem Member Benefits. Read each offer carefully for specific details,
limitations and restrictions.

 

(g) Cancellation; Termination. You may opt-out of the MyWhataburger Rewards™
program at any time, for any reason by cancelling your MyWhataburger Rewards™
account, or by visiting https://whataburger.com/contact-us. If you cancel your
MyWhataburger Rewards™ account, any unredeemed points, Rewards and Member
Benefits, will automatically be cancelled and will no longer be available for
redemption. If you re-enroll at any time, you will start over as if you had just
established your MyWhataburger Rewards™ account for the first time. Whataburger
reserves the right to suspend or terminate, at Whataburger’s sole and absolute
discretion, any MyWhataburger Rewards™ account if Whataburger believes you have
abused Whataburger privileges, have violated or acted inconsistently with these
Terms or applicable law, or otherwise acted in a manner harmful to Whataburger’s
interests.

 

(h) Expiration of MyWhataburger Rewards™ Points, Rewards, and Member Benefits;
Inactive Accounts. MyWhataburger Rewards™ points may not be combined with other
offers or coupons, unless specifically allowed under the terms of such other
offers or coupons. Unredeemed points expire (i) one year from the date that such
points were earned, and (ii) upon the cancellation or termination of your
MyWhataburger Rewards™ account as described in Section 8.2(g) above. When you
redeem your points for Rewards, your oldest available points are used first. If
you have any questions regarding your MyWhataburger Rewards™ program account
status, please contact https://whataburger.com/contact-us. Once points either
expire or are used to redeem a Reward, the points will be removed from your
MyWhataburger Rewards™ account. Points will not be added back to your
MyWhataburger Rewards account if you do not redeem the points for a Reward
within one (1) year from the date the points were added to your MyWhataburger
Rewards™ account. Whataburger reserves the right to cancel a your MyWhataburger
Rewards™ program account if your MyWhataburger Rewards™ program account remains
inactive for a period of two (2) years or more. Accordingly, once you register
for the MyWhataburger Rewards™ program account, if you do not make a purchase or
engage in an activity for which you will receive points within two (2) years
after your initial registration or the last recorded purchase or activity for
which you received points, Whataburger reserves the right to cancel your
MyWhataburger Rewards™ account. You understand and agree that cancellation by
Whataburger of your MyWhataburger Rewards™ account will result in the
cancellation of all points, any unredeemed Rewards, and other unredeemed Member
Benefits, and the inability to earn and/or redeem further points, Rewards, and
other Member Benefits.

 

(i) Conversion of Unexpired Whataburger Rewards. If you are an existing
Whataburger Rewards program member, and you have an earned but unredeemed Reward
item as of the February 14, 2023 conversion date, each of your unredeemed
Rewards will be converted to 625 points.

 

(j) Other Restrictions. Whataburger shall be the sole arbiter in cases of
suspected abuse, fraud, or violation of MyWhataburger Rewards™ program Terms,
and any decision Whataburger makes relating to termination, suspension, or other
disabling of the MyWhataburger Rewards™ program or your associated account
(including, but not limited to, cancellation or suspension of points, Rewards,
or other Member Benefits) shall be final and binding. Should you object to any
of these Terms, or any subsequent modifications thereto, or become dissatisfied
with the MyWhataburger Rewards™ program, your sole remedy is to discontinue
participation in the program and properly cancel your account as detailed in
Section 8.2(g) above.

 

(k) Limitations of Liability; Incontestability. IN ADDITION TO THE OTHER
LIMITATION OF LIABILITY PROVISIONS UNDER THESE TERMS, UNDER NO CIRCUMSTANCES
SHALL WHATABURGER, ITS AFFILIATES OR ITS FRANCHISEES BE LIAVLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
MYWHATABURGER REWARDS™ PROGRAM, EVEN IF ANY OR ALL OF THE WHATABURGER ENTITIES,
AFFILIATES OR FRANCHISEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, THEREFOR SUCH EXCLUSIONS MAY NOT APPLY TO YOU. IF A
MYWHATABURGER REWARDS™ PROGRAM MEMBER PROVES THAT WHATABURGER HAS IMPROPERLY
DENIED SUCH PARTICIPANT ANY REWARD OR MEMBER BENEFIT, THEN THE MEMBER’S SOLE AND
EXCLUSIVE REMEDY UNDER SUCH CIRCUMSTANCES WILL BE TO RECEIVE THE EQUIVALENT
REWARD. MEMBER’S IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE RELIEF OR
EQUITABLE RELIEF.

 

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:

 

Online: whataburger.com/contact-us

 

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®, PayPal® 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. In addition, part of the Mobile App is
specifically licensed to Whataburger under one or more of the following United
States patents (as fully described at http://www.35usc287.com/mobile): U.S.
Patent No. 10,102,184; U.S. Patent No. 9,892,093; U.S. Patent No. 9,886,421;
U.S. Patent No. 9,405,735; and U.S. Patent No. 8,522,127.

 

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 a copyright right or other intellectual
property right 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 (or any other intellectual property rights)
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
Whataburger Online Services 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 Whataburger Online Services.

 

13. Termination.

 

13.1 Your Right to Terminate. You may terminate these Terms and your use of the
Whataburger Online Services 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 Whataburger 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
Whataburger 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
Whataburger Online Services the license granted to you under these Terms will
immediately end and you must immediately stop using the Whataburger Online
Services. 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 Whataburger Online Services or in connection with the termination or
suspension of your use of the Whataburger Online Services.

 

14. Disclaimer of Warranties.

 

14.1 Disclaimer of Whataburger Warranties. THE WHATABURGER 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 WHATABURGER
ONLINE SERVICES. 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 WHATABURGER ONLINE SERVICES, ANY CONTENT THEREON
OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE
WHATABURGER ONLINE SERVICES.

 

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 WHATABURGER ONLINE
SERVICES. 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 WHATABURGER
ONLINE SERVICES. 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 WHATABURGER ONLINE SERVICES 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 Whataburger Online Services; (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 Whataburger Online
Services, 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 Whataburger Online Services
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 Whataburger Online
Services (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 Whataburger Online Services or your possession and use of the
Whataburger Online Services 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 controlling the investigation,
defense, settlement and discharge of any such intellectual property infringement
claim.

 

17. Governing Law; Dispute Resolution; Arbitration; Class Action 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.

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE
DISPUTES WITH WHATABURGER AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION
AGREEMENT.”

 

ARBITRATION. YOU AND WE EACH AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, INCLUDING ANY QUESTIONS OF
ARBITRABILITY (“DISPUTE”), SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE
AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS CONSUMER
ARBITRATION RULES BY A SOLE ARBITRATOR. You and we each also agree that this
Arbitration Agreement affects interstate commerce so that the Federal
Arbitration Act and federal arbitration law, not state law, apply and govern any
questions regarding the enforceability of this dispute resolution provision,
including all questions of arbitrability (despite the general choice of law
provision set forth below). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT
REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS
ARBITRATION AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT
(INCLUDING ATTORNEYS’ FEES).

 

For any Dispute, you must first give us an opportunity to resolve your claim by
sending a written description of your claim to Whataburger, Inc., ATTN: Legal
Department, 300 Concord Plaza Drive, San Antonio TX 78216. You and we each agree
to negotiate your claim in good faith for a sixty-day period. You further agree
that you may not commence any arbitration or court proceeding unless you and we
are unable to resolve the claim within 60 days after we receive your claim
description and you have made a good faith effort to resolve your claim directly
with us during that time.

 

WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”). YOU AND WE EACH
AGREE THAT YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN
BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR
PURPORTED CLASS, AND NO PROCEEDINGS COMMENCED HEREUNDER MAY BE JOINED WITH OR
INCLUDE ANY OTHER PARTIES, OR CLAIMS BY OTHER PARTIES (WHETHER REPRESENTATIVE,
MASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION). Each party agrees that
this limitation includes, but is not limited to, precluding each party from
pursuing any claim for public injunctive relief, whether in arbitration or
court. If we believe that any claim you have filed is inconsistent with this
limitation, then you agree that we may seek an order from a court determining
whether your claim is within the scope of this class action waiver.

 

If a court or arbitrator determines in an action between you and us that any
part of this Dispute Resolution provision cannot be enforced, the rest of this
Dispute Resolution provision will continue to apply; provided, however, that if
the Class Action Waiver is declared to be unenforceable or invalid, this entire
Dispute Resolution provision (other than this sentence) will not apply to that
claim (but will still apply to any and all other claims that you or we may
assert in that or any other action).

 

 

18. Miscellaneous.

 

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

 

Online: whataburger.com/contact-us

 

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 Whataburger Online Services 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.



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