EFFECTIVE DATE/LAST UPDATED: September 19, 2019
These Terms constitute an agreement between Wahlburgers Franchising LLC and its affiliates (collectively, “WAHLBURGERS” or “WE” or “US”) and you. We recommend that you print out a copy of these Terms for your records.
PLEASE NOTE THAT THESE TERMS CONTAIN PROVISIONS THAT GOVERN THE RESOLUTION OF DISPUTES BETWEEN US AND YOU THROUGH BINDING ARBITRATION AND LIMIT OUR LIABILITY TO YOU.
Certain services offered through the Online Services, including mobile applications, loyalty programs, sweepstakes and other promotions, may be governed by additional terms and conditions presented in conjunction with them. You must agree to the additional terms before using such services. These Terms and any additional terms will apply equally. In the event of an irreconcilable inconsistency between any additional terms and these Terms, the additional terms will prevail unless they expressly state otherwise.
UPDATES OR CHANGES TO THESE TERMS
We may change or modify these Terms so please check back from time to time. If we make changes to these Terms, we will post the updated Terms with a "Last Updated" effective date of the revision. Any changes or modifications will be effective immediately upon posting of the changes or modifications, and you waive any right you may have to receive specific notice of such changes or modifications, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes or modifications. Your continued access to, use of and/or participation in the Online Services after these Terms have been changed or modified (see Last Updated date above) signifies your acceptance of any updated Terms. As a result, you should frequently review these Terms to understand the terms and conditions that apply to your access to, use of and/or participation in the Online Services. If you do not agree to the changed or modified Terms, do not use the Online Services.
USE OF THE SERVICES; PERSONAL USE
The Online Services are not intended for use by anyone under the age of eighteen (18) years old. If you are under the age of eighteen (18) you must immediately stop using this Online Services.
The Online Services are made available to provide information about Wahlburgers restaurants, and to provide certain marketing and other programs and services offered by Wahlburgers ("Programs"). Information made available through the Online Services may apply only to participating Wahlburgers restaurants operating in the United States.
You will not copy, duplicate, sell, publish, post, license, rent, distribute, modify, translate, adapt, reverse-engineer, or create derivative works of the Online Services without Wahlburgers’ prior written consent.
You will not access the Online Services for the purpose of engaging in competitive activities with Wahlburgers.
You will not use the Online Services for unlawful purposes.
You will not submit inaccurate, incomplete, or out-of-date information via the Online Services, commit fraud or falsify information in connection with your use of the Online Services, or act maliciously against the interests or reputation of Wahlburgers.
You will not engage in data mining or similar data gathering or extraction activities from the Online Services. You will not use the Online Services to harvest email addresses, names or other information of the users of the Online Services or to spam other users of the Online Services.
You will not access, use, or copy any portion of the Online Services or Content, through the use of indexing agents, spiders, scrapers, bots, web crawlers, or other automated devices or mechanisms.
You will not use the Online Services to post, transmit, input, upload, or otherwise provide any information or material that contains any viruses, worms, Trojan horses, malware, ransomware, adware, or other harmful computer code that may disable, damage, impair, or otherwise interfere with the Online Services, the servers used to make the Online Services available, or any other network, computers, hardware, software or systems.
You will not engage in activities that aim to render the Online Services or associated services inoperable or to make their use more difficult.
You may not frame, mirror or circumvent the navigational structure of any part of the Online Services.
You may not upload, distribute, transmit, or post anything to or through the Online Services that: (i) is fraudulent, libelous, obscene, pornographic, indecent, violent, offensive, hate speech, harassing, threatening, defamatory, harms another person, or the like; (ii) invades the privacy of another or includes the confidential or proprietary information of another, or (iii) is protected by intellectual property rights without the express prior written consent of the owner of such intellectual property rights.
You shall not access any Account of which you are not the authorized user.
You shall not: (i) use or attempt to access an account or passwords that are not yours, (ii) misrepresent your identity in any way, (iii) alter or delete the content of any messages originating from another person, (iv) intercept messages without permission, (v) use Wahlburgers computing resources beyond your authorization, and (vi) make Wahlburgers resources available to third parties Unauthorized anonymous and/or pseudonymous communications are prohibited.
You may not engage in any conduct while using the Online Services that Wahlburgers considers inappropriate, unauthorized, or contrary to the intended purpose of the Online Services.
You are responsible for providing the equipment and services that you need to access and use the Online Services. We do not guarantee that the Online Services are accessible on any particular equipment or device or with any particular software or service plan. Some of the Programs and Services are made through the use of third-party suppliers and service providers ("Suppliers").
You agree to defend, indemnify and hold Wahlburgers, its franchisees and Suppliers and each of their respective employees, officers, directors and insurers, harmless from and against any actual or threatened demands of any kind or nature arising out of or in connection with your (i) violation of the these Terms, (ii) your violation of any applicable law; and (iii) your infringement or misappropriation of Wahlburgers’ intellectual property. Wahlburgers 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.
There are no fees charged by Wahlburgers to use the Online Services, but there may be data usage or other like fees owed to your mobile carrier resulting from such use, for which you are responsible, and you are responsible for payment of any items purchased through the Online Services.
Wahlburgers may discontinue or change specifications on products described and/or displayed through the Online Services from time to time without prior notice. Wahlburgers reserves the right to suspend, block or terminate your access to all or any portion of the Online Services and/or participation in any Program without notice and in its sole discretion (including without limitation for actual or suspected fraud, unauthorized use of any Program, member card or account or failure to comply with these Terms). Wahlburgers also reserves the right to seek all other remedies available at law and in equity.
The Online Services are owned solely by Wahlburgers and its licensors and nothing in these Terms is intended to transfer any rights therein to you.
PROVISION OF ONLINE SERVICES; MOBILE DEVICES
We are constantly trying to improve the Online Services to provide the best possible experience for our users. You acknowledge and agree that the Online Services, or certain features of the Online Services, may change from time to time without notice to you. Any new feature that augments, enhances or modifies existing Online Services is subject to these Terms.
You acknowledge and agree that we may decline to provide access to the Online Services or stop (either temporarily or permanently) providing the Online Services (or any feature or content within the Online Services) to users at our sole discretion, without notice or liability to you.
You may stop using any part of the Online Services at any time. You do not need to specifically inform us when you stop using the Online Services.
You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Online Services, your account details, or any files or other content which are contained in your account.
If you use a mobile device to access the Online Services, the following additional terms and conditions (“MOBILE TERMS”) also apply:
• You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Online Services. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details.
• You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your service provider or otherwise.
• Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use.
YOUR ACCESS TO AND USE OF THE ONLINE SERVICES VIA YOUR MOBILE DEVICE CONFIRMS YOUR AGREEMENT TO THE MOBILE TERMS, AS WELL AS THE REST OF THESE TERMS.
If you join one of our programs or set up an account for an Online Service, you may be required to choose a user name and password. You may also be able to access your account and/or create an account through third party authorization method(s) (for example, a social media account). You may have the ability to choose to have portions of your account information accessible by third parties (for example, in connection with your use of third party services, such as an electronic wallet). You may have the ability to interact with your account through third party services (for example, third party order processing services). The third party’s terms and conditions apply as more fully described under Third Party Content, Products and Services (including Advertising and Promotions) below. All information provided by you must be complete and accurate. If your information changes, you should promptly update your account. Your Program account(s), username(s) and password(s) are for your personal use only. You may have the ability to choose to have your credit card and/or other payment methods associated with your account(s).
You are responsible for maintaining the confidentiality of, and are responsible for all activities that occur under, your program account(s), username(s) and password(s), and any other information that may be used to access your account(s). If you believe your account(s) have been compromised, please immediately contact us at [email protected] and take immediate action to remove any credit card and/or other payment method information associated with your account(s).
AVAILABILITY OF PRODUCTS; PRODUCT SALES
All products displayed on the Online Services, including Wahlburgers branded products, may be made available by franchisees and other third parties not owned or operated by Wahlburgers. Wahlburgers may run national promotions relating to the sale of these products, but the third party franchisees and other third parties set the prices for the products and determine product availability. Wahlburgers reserves the right without prior notice to discontinue any national promotions or stop displaying the Wahlburgers branded products through the Online Services.
THE WAHLCLUB REWARDS PROGRAM
Wahlburgers offers the WahlClub Rewards Program (the “REWARDS PROGRAM”) to reward and thank our loyal restaurant customers. The Rewards Program is available to enrolled members at participating Wahlburgers restaurants in the United States. Points and Rewards accumulated under the Rewards Program are promotional and have no cash value. There are no membership fees associated with the Rewards Program.
ELIGIBILITY: You may enroll in the Rewards Program if you: (1) are a legal resident of the United States or Canada; (2) at least 18 years of age at the time you enroll; (3) have an active, valid e-mail address; and (4) are a human being. No corporations, partnerships, limited liability companies, or other legal entities can participate in the Rewards Program.
The Rewards Program is not targeted towards, nor intended for use by, anyone under the age of 18. By accessing, using and/or submitting information to or through the App, you represent that you are at least age 18.
ENROLLMENT/REWARDS ACCOUNT: You need to create and register an account in order to participate in the Rewards Program. You can enroll in the Rewards Program and create a Rewards account (“REWARDS ACCOUNT”) in one of the following three ways:
Download the Wahlburgers mobile application to your Android™ or iPhone® device and create a Rewards Account. You will have the option of following the prompts to create a Rewards Account through your Facebook account; or
Create a Rewards Account online at wahlclub.com; or
Create a Rewards Account on Wahlburgers online ordering site located at wahlburgersrestaurant.olo.com
The Rewards Account registration process may require that you provide the following information: username, password, email address, physical address, telephone number, birthday, name, and marketing preferences.
In creating a Rewards Account, you agree to:
• Create only one Rewards Account;
• Provide honest, accurate, current and complete information regarding yourself;
• Keep your profile, contact and other account information updated and accurate;
• Keep your account password private and not share it with others; and
• Notify Wahlburgers if you discover or suspect that your account has been hacked or its security breached.
You also agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account.
Your Rewards Account is personal to you and may not be sold, transferred or assigned to, or shared with family, friends or others.
From time to time, as a part of the Rewards Program, Wahlburgers will send Rewards Account holders transactional, informational, and promotional messages and/or offers. These communications may be communicated using various means including electronic transmission, push notifications through the App to your device with message and data rates applying, email and/or any other ways you may have selected when you enrolled in the Rewards Program or to which you thereafter consented. Any special offers may be subject to specific terms, restrictions and conditions, and are subject to change or termination without notice. We are not responsible for any communication sent to an incorrect or incomplete destination or if your contact information is not up to date in your profile at the time of any such communication. We are not responsible for any lost, late, misdirected or damaged communications. If your contact information changes, or if you wish to change your contact information or the method by which we send you messages, please log into your Rewards Account and update your contact information or preferences. Wahlburgers will also provide for opt-out and unsubscribe options as required by law, some of which are made available via your device and/or email settings. You may contact Wahlburgers for assistance in any opt-out via [email protected]
You are responsible for providing the equipment and services that you need to access and use the App. We do not guarantee that the App is accessible on any particular equipment or device or with any particular software or service plan.
Our App is designed to integrate with several elements of your device’s native functionality. Accordingly, if you choose not to enable your device’s GPS/location settings, or other device functionality, or if you chose not to provide your zip code, some features of our App may not be available to you. When you first sign-in to the Mobile App, you have the option to enable or disable certain reminders or "push" notifications, including advertisements when you are close to a Wahlburgers location. You can opt-out of receiving push notifications by accessing the “Notifications” functionality of your device’s operating system. Please refer to your device settings for additional information.
EARNING POINTS AND OFFERS FOR REWARDS: You will earn and receive Points (as defined below) toward offers for Rewards, which are defined as one or more things given by Wahlburgers to you (each a “REWARD”) as follows:
QUALIFYING PURCHASES: Members will earn and receive Points toward Membership Levels by making Qualifying Purchases (defined below) from participating Wahlburgers restaurants. You will earn Points at the rate of one Point for each One U.S. Dollar ($1.00) you spend on Qualifying Purchases (each a “Point”) at participating locations in the United States. There are no fractional Points. Taxes, gratuities/tips, and any fees, including without limitation, delivery fees, and bag fees, may also be excluded and ineligible for Points.
Qualifying Purchases are all Wahlburgers food, non-alcoholic beverages and merchandise purchased from participating locations, except the following are specifically excluded: (1) the purchase or reload of a Wahlburgers Gift Card, (2) merchandise purchased through the Wahlburgers online store, available at wahlgear.com, (3) Wahlburgers At Home retail products; and (4) orders made through third party food delivery platforms (for example, UberEats, Doordash, GrubHub, Postmates, and the like).
Wahlburgers reserves the right to delay, suspend, recalculate, reduce or revoke any Points or Rewards achievements that Wahlburgers suspects are connected with such excluded orders or items. Sales tax and returned merchandise will be deducted from the purchase price.
All Qualifying Purchases made through a Member’s Reward Account will be treated as activity of the Member, regardless of any other name listed on the order (for example, different name on the method of payment, delivery recipient, etc.).
Points are non-transferable and cannot be combined with the Points of other Rewards Account holders.
Any Purchases completed before one becomes a Rewards Account holder will not be counted as Qualifying Purchases.
The portion of any purchases made through the redemption of Rewards will not generate Points.
In order to receive Points for a Qualifying Purchase, you must do one of the following: (1) using the APP and your mobile device, scan the barcode displayed on the printed receipt (note that the barcode displayed on the receipt is valid only for seven (7) days from date of Qualifying Purchase, (note that some locations utilize a point of sale system that will also allow one to manually enter the numeric barcode manually instead of scanning the QR code with a device -- for more information on this method of manual entry, please inquire at the participating location) or (2) provide either your phone number or email address associated with your Rewards Account to the restaurant employee during your purchase. Orders placed through the APP will automatically have Points credited. Minimum purchase requirement of $1.00.
You can track your Points, see any available offers, and see Rewards you have already earned and that you may earn in the future by logging into your Rewards Account and reviewing your Account History. Generally, Points for Qualifying Purchases from participating stores are automatically added to your Rewards Account within twenty-four (24) hours of when you earned them.
You can earn Points a maximum of three (3) times within any four (4) hour time period.
From time to time, we, or others acting with our permission, may offer you special promotions that offer you bonus points (“BONUS POINTS”). Bonus Points will be awarded as described in the applicable promotional or special offer and will be subject to any additional terms set forth in the promotional offer. Read each offer carefully for specific details, expiration dates, limitations and restrictions.
Currently, rewards and benefits within the Wahlburgers Rewards Program are determined by the number of Points that you accumulate in your Rewards Account. By opening a Rewards Account, you will be automatically enrolled in Wahlburgers Rewards Program.
Once you reach a specific Points level within the Wahlburgers Rewards Program, you will be able to redeem the Reward(s) or benefit(s) associated with your Account that are applicable to your Points level at that time.
POINTS CAN EXPIRE. IF YOU DO NOT MAKE A QUALIFYING PURCHASE FOR A PERIOD OF TWELVE (12) MONTHS, ANY POINTS EARNED WILL EXPIRE AND WILL BE REMOVED FROM THE REWARDS ACCOUNT.
You can view and track your Points balance and available offers by using the Wahlburgers App or at wahlclub.com. Wahlburgers reserves the right to change, alter or amend the benefits and Rewards associated with each amount of Points, as well as the Points amount levels, of the Rewards Program in its sole discretion at any time.
Although Rewards are subject to change, Rewards may include:
• Invitations to certain promotions, offers or events. Wahlburgers may offer Wahlburgers Rewards Program members event invitations, early or extended access to certain promotions, offers, discounts, and events.
• Personalized offers and coupons. Special offers may be distributed through the Wahlburgers App, or by email. You may be required to provide a valid email, telephone and physical address in order to receive your special offers. Special offers may be customized based on purchase behaviors and preferences. Special offers may include periodic discounts on food, non-alcoholic beverages and merchandise, or the opportunity to earn Bonus Points. Special offers may have certain restrictions including expiration dates and short, time-limited redemption periods. Special offers are personal to you and cannot be shared, copied or transferred. Read each offer carefully for specific details, expiration dates, limitations and restrictions.
• Upon successfully creating a Rewards Account, you will receive a code to redeem $5 off your purchase (subject to the below conditions) (the "Sign-Up Reward"):
o The Sign-up Reward may be redeemed at participating restaurants only and is non-transferrable.
o The Sign-Up Reward is not valid for the purchase of alcohol, gift cards or merchandise.
o The Sign-Up Reward cannot be combined with any other offer, reward, or discount.
o The Sign-Up Reward does not include tax and gratuity.
o You must redeem your Sign-up Reward within fourteen (14) days of the date the Sign-up Reward was issued to you.
If you have provided Wahlburgers with a current, valid email address, you will receive a reminder email from Wahlburgers indicating that your Sign-up Reward is available to you.
• 1 free non-alcoholic Frappe on your birthday (that is, the birthday date of record that you provided in your Rewards Account). On or around your birthday, you will receive one (1) complimentary non-alcoholic Frappe (the “Birthday Reward”) subject to the below:
o The Birthday Reward may be redeemed at participating restaurants, is non-transferrable and not redeemable for cash or cash equivalent.
o The Birthday Reward will be issued to you approximately fifteen (15) days before your birthday.
o You must redeem your Birthday Reward within thirty (30) days of the date the Birthday Reward was issued to you.
If you have provided Wahlburgers with a current, valid email address, you will receive a reminder email from Wahlburgers on your birthday indicating that your Birthday Reward is available to you.
• Rewards, consisting of complimentary food, non-alcoholic beverages and merchandise items that can be redeemed at participating restaurants using the Points, and subject to availability, include but are not limited to Tater Tots, Sweet Potato Tots, Fries, Onion Rings, The Our Burger, BBQ Bacon Burger, The Impossible Burger, Our Burger Wahlbowl, BBQ Bacon Wahlbowl, Jenn’s Chicken Wahlbowl, and Wahlburgers’ t-shirts and/or hats.
• All Rewards are subject to the below conditions:
o Rewards may only be redeemed at participating restaurants, based on the availability of the Reward item(s). Each Reward is non-transferrable, and is not redeemable for cash or cash equivalent.
o Rewards expire. Once a Reward is activated, you must redeem it within twenty-four (24) hours, which timeframe will be displayed in the Wahlburgers App at the time of your activation of the Reward either through the App or at www.wahlclub.com. If not redeemed within the twenty-four (24) hour time period, the Reward will be cancelled and the unused Points will be returned to your Points balance.
o Wahlburgers reserves the right to change, cancel, or reassign the Points required for each Reward.
o If you have provided Wahlburgers with a current, valid email address, you will receive a reminder email from Wahlburgers indicating that any available Rewards may be approaching the twenty-four hour expiration period.
• Opportunities to receive special Rewards, and/or gain access to exclusive, invitation-only events. YOU MUST OPT-IN TO RECEIVE PROMOTIONAL AND MARKETING OFFERS FROM WAHLBURGERS AND MAY BE REQUIRED TO PROVIDE A VALID EMAIL, TELEPHONE AND PHYSICAL ADDRESS IN ORDER TO RECEIVE YOUR SPECIAL REWARDS. AN INVITATION DOES NOT GUARANTEE A SEAT, EVENT INVITATIONS AND/OR RSVPS MAY BE BASED ON AVAILABILITY.
• Wahlburgers reserve the right to change, remove, or terminate any Rewards items in our sole discretion.
You will receive ten (10) complimentary Points (the “Referral Bonus”) for each person you refer to the Rewards Program by completing the following steps: In the Mobile App, go to the “Refer A Friend” tab within the “More” page. A code will appear. Click on “INVITE YOUR FRIEND TO JOIN” and then, your device’s “sharing” screen will appear. You can select the method you would like to use from the messaging platforms available on your device to share the referral code. If you access WahlClub online at wahlclub.com, you can Refer A Friend by sharing your referral code through email (from your email address to the recipient’s email address). Regardless of how you share the referral code with someone else, ask them to enter the referral code when they join WahlClub. The complimentary Points will be added to your Rewards Account once the person you referred has completed both of these steps (1) successfully joined the WahlClub and entered the referral code as prompted and (2) made a Qualifying Purchase.
OUR POSTS ON SOCIAL MEDIA. Links to Wahlburgers’ social media pages (e.g., Facebook, Twitter, YouTube, and Instagram) are included on the Online Services (“Social Media Pages”). Because anyone may post or tag on Social Media Pages, posts do not necessarily reflect Wahlburgers’ views. If we follow, like, re-tweet, favorite, share, or re-post an individual’s content on our Social Media Pages, that is not an endorsement of that person or party or any product, service or company they represent.
YOUR POSTS ON SOCIAL MEDIA. We may or may not review content you and other third parties post on our Social Media Pages. We may remove anything that we deem offensive, inappropriate or inconsistent with the vision of Wahlburgers posted on our Social Media Pages. We may work with third-party service providers of the Social Media Pages to block users who are being offensive, abusive, disruptive or otherwise violating these Terms or applicable laws. We will treat all information posted to our Social Media pages as non-confidential.
Through the App, you can also share your Wahlburgers experience. Your feedback will be shared with Wahlburgers, but you have the option to give Wahlburgers permission to make your comment public.
BUT PLEASE NOTE THAT BY SO AGREEING THAT WAHLBURGERS CAN MAKE YOUR COMMENT PUBLIC, YOU EXPRESSLY AGREE THAT WE MAY USE YOUR COMMENT ON THE WAHLBURGERS WEBSITE, FACEBOOK PAGE, AND/OR OTHER SOCIAL MEDIA PAGES, AND YOU HEREBY GRANT A PERPETUAL, ROYALTY-FREE LICENSE TO WAHLBURGERS TO DO SO.
ADDITIONAL REWARDS PROGRAM TERMS:
Wahlburgers reserves the right to terminate your Rewards Account and/or your participation in the Rewards Program if we determine in our sole discretion that (a) you have violated these Terms, (b) you have more than one (1) Rewards Account,(c) you act in an abusive manner (including but not limited to abusive behavior targeted at Wahlburgers’ employees, affiliates or abusive behavior via social media) or in a manner inconsistent with local, state or federal laws, or (d) the use of your Rewards Account is unauthorized, deceptive, fraudulent or otherwise unlawful. Discontinued membership under this section will result in the immediate loss of all accumulated Rewards benefits and the Rewards account will be closed. Wahlburgers also reserves the right to deny future membership if it deems your conduct to violate these Terms. Wahlburgers’ failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of Wahlburgers’ rights.
Wahlburgers may, in its sole discretion, suspend, cancel, or combine Rewards Accounts that appear to be duplicative, and may refuse to allow you to re-enroll in the Rewards Program. Wahlburgers also reserves the right to “unregister” and make ineligible for the Rewards Program any Rewards Account that has been inactive for a period of three (3) years. As used herein, “inactive” is defined as no Points or Rewards earned
Wahlburgers has the right at any time, with or without giving you prior notice, to:
• End or cancel the Rewards Program and/or any specific Reward;
• Change any Reward or other Rewards Program benefit we offer;
• Change the requirements, including, without limitation, the number of Points required, for earning a particular Reward;
• Change the time you have in which to earn a particular Reward;
• Add or withdraw participating restaurants and/or
• Change any other feature of the Rewards Program.
If we end the Rewards Program, Rewards you have earned but not used will expire on the end date, and you may not redeem any Rewards or use any credits after the end date.
THIRD PARTY CONTENT, PRODUCTS AND SERVICES (INCLUDING ADVERTISING AND PROMOTIONS)
Wahlburgers may provide third party content on the Online Services (including embedded content) and links to web pages and content of third parties, including Wahlburgers branded and/or co-branded content and/or web pages (collectively, “Third Party Content”). We may also make our Online Services available to you through your use of services of third parties, such as Google. When you visit other sites via Third Party Content, or utilize the services of third parties, the terms and policies of the third party sites/services govern such third party site/services, including without limitation use of any of your account information that you choose to make available to such third party. We do not control, endorse or adopt any Third Party Content or service, including the advertisements or promotions of any third party, and the inclusion of any link to and/or reference to Third Party Content or availability of Third Party service in connection with use of any Wahlburgers Online Service does not imply Wahlburgers’ endorsement, affiliation or adoption of the Third Party Content or service, and Wahlburgers makes no guarantee as to its accuracy, completeness, reliability or suitability for your purposes. You agree to comply with all applicable laws, regulations and terms applicable to your use of any such third-party services. You acknowledge and agree that Wahlburgers is not responsible or liable in any manner for Third Party Content or services.
The Online Services may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Online Services is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order). We cannot guarantee that your device’s or computer’s display of color or other product features is accurate.
FEEDBACK AND SUBMISSIONS
If you provide feedback to us regarding the Online Services, our products or our services, we may use that information for any purposes so long as it does not identify you as an individual, without compensation or consideration to you.
The Online Services are controlled, operated, and administered by Wahlburgers from within the United States of America. We make no representation that any materials in the Online Services are appropriate or available for use outside of the United States. If you access the Online Services from locations outside of the United States of America, be advised the Online Services may contain references to products and services that are not available or are prohibited in your country. All visitors to and users of the Online Services are responsible for compliance with all local laws applicable to them with respect to the content and operation of the Online Services. The Online Services are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation, or which that would subject Wahlburgers or its affiliates to any registration requirement within such jurisdiction or country. This English-language set of terms is Wahlburgers’ official statement of its terms and conditions of use for the Online Services. In case of any inconsistency between these English-language set of terms and its translation into another language, these English-language Terms prevail.
OUR INTELLECTUAL PROPERTY
Wahlburgers’ trademarks, service marks, logos, domain names, trade or company names, or indicia of origin referred to on the Online Services are the property of Wahlburgers or its affiliates or its licensors. In countries where any of Wahlburgers’ trademarks, service marks, logos, domain names, trade or company names, or indicia of origin are not registered, Wahlburgers claims other rights associated with unregistered trademarks, service marks, logos, domain names, company names, or indicia of origin. Other product or company names referred to on the Online Services may be the trademarks of their respective owners. You may not use any trademarks, service marks, logos, domain names, company names, or indicia of origin of Wahlburgers or any third party without permission from the owner of the applicable trademarks, service marks, logos, domain names, company names, or indicia of origin. Your use of the Online Services does not create, and nothing contained in the Services shall be construed as creating or conferring to you, by implication, estoppel, or otherwise, a license or any other rights in any intellectual property rights of Wahlburgers. Non-Wahlburgers-owned content may not be used without permission.
Unless otherwise indicated, the Online Services and all content therein including without limitation articles, text, photographs, images, illustrations, graphics, designs, information, video and audio material, and software, including the selection and arrangement thereof, are Wahlburgers’ or its licensor’s proprietary property and are protected by copyright laws. You are granted a limited, non-sublicensable, non-exclusive, terminable, non-transferable license to access and use the Online Services, and all material therein, for personal, informational and consumer transactional purposes only, including the dissemination of content to the extent specifically allowed through any provided third party functionality made available through the Services that allow you to post content from the Services to your personal social media account(s). This limited license does not include the resale, commercial use, distribution, public display or performance of the Online Services or any materials therein, nor does it permit the modification or the making of derivative uses of the Online Services of any materials therein, or the use of any data mining, spiders, robots or similar data gathering or extraction methods thereon.
YOU MAY NOT REMOVE OR ALTER ANY COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHT NOTICE IN THE ONLINE SERVICES. ALL RIGHTS NOT EXPRESSLY GRANTED ARE RESERVED.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
This DMCA statement constitutes part of the legal terms and conditions governing all users of the Online Services. In compliance with the DMCA (17 U.S. Code 512), Wahlburgers will respond to proper notifications that comply with the DMCA and the terms listed in this Section of claimed copyright infringement with respect to material posted by users or linked on or though the Online Services, and will take appropriate action including removing and disabling access to the allegedly infringing material. Wahlburgers also reserves the right to remove and disable access to any user-posted material which, in Wahlburgers’ sole judgment, may be infringing or violating another’s intellectual property right, whether or not Wahlburgers has been notified by the rights holder.
Wahlburgers may terminate, in appropriate circumstances and in its sole discretion, users who are deemed to be repeat infringers and may limit access to the Online Services and/or terminate the accounts of any user who may infringe the intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any material available on or via the Online Services infringes a copyright you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
By mail: Attn.: General Counsel, Wahlburgers, 350 Lincoln Street, Suite 2501, Hingham, MA 02043
By telephone: (781) 749-4972 (be advised that notice cannot occur via telephone)
By email: [email protected]
If you believe that your copyright has been infringed or violated by any material posted on any of the Online Services, please notify our Designated Agent listed above in writing and provide the following requisite information:
• Your physical or electronic signature, or a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work you claim is infringed, or if multiple copyrighted works, a representative list of the works you claim are infringed, with sufficient detail to permit us to locate it;
• Information reasonably sufficient to permit Wahlburgers to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
• Your acknowledgment and agreement that the DMCA provides that you may be liable for damages (including costs and attorneys' fees) if you falsely claim that materials infringe your copyright(s).
If we receive a valid notification of alleged copyright infringement, we will remove the materials and take reasonable steps to contact the owner of the removed materials so that the owner can respond with a counter-notification.
Under the DMCA, if a notice of copyright infringement has been filed against material posted by you on any of the Online Services, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
• Uour physical or electronic signature;
• A statement that you own the copyrighted work and that it be removed or disabled from the Online Services;
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled, with sufficient detail so we may identify and locate the material(s);
• A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
• Your name, address, and telephone number, and email address if you have one, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the Commonwealth of Massachusetts, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If Wahlburgers receives a valid counter-notification, it may reinstate the removed or disabled material unless we receive notice from the original person or entity that provided notice of alleged infringement that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity within ten (10) business days of receiving the copy of the counter-notice.
Please note that, pursuant to the DMCA, any person who knowingly materially misrepresents that any material or activity is infringing, or that any material or activity was removed or disabled by mistake or misidentification, will be liable for damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by an online service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Accordingly, if you are not sure whether certain material or activity infringes your or another’s copyright, please consult with a qualified attorney.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ONLINE SERVICES, AND ALL CONTENT THEREIN, AND ALL THIRD PARTY CONTENT ACCESSIBLE FROM OR THROUGH THE ONLINE SERVICES, AND ALL PROGRAMS, ARE PROVIDED TO YOU "AS IS," WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, DATA ACCURACY, SYSTEMS INTEGRATION, OR QUIET ENJOYMENT.
WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE TIMELY AND ACCURATE INFORMATION THROUGH THE ONLINE SERVICES, YOU SHOULD NOT ASSUME THAT THE INFORMATION IS ALWAYS UP TO DATE OR THAT THE ONLINE SERVICES CONTAIN ALL RELEVANT INFORMATION AVAILABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAHLBURGERS IS NOT LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND, ARISING FROM YOUR USE OF, OR INABILITY TO USE, ANY OF THE ONLINE SERVICES OR ANY MATERIALS AVAILABLE IN ANY ONLINE SERVICE, RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM THE ONLINE SERVICES OR THAT RESULTS FROM UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF ANY ACCOUNT(S), MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, ACCIDENTS, VIRUSES, MISUSE OR FRAUD, DELAYS IN OPERATION, TRANSMISSION OR FAILURES OF PERFORMANCE, DELETION OF FILES OR EMAIL, UNAUTHORIZED USES OF THE ONLINE SERVICES OR DATA, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO WAHLBURGERS' RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT SHALL WAHLBURGERS' AGGREGATE LIABILITY, WHETHER IN CONTRACT, WARRANTY OR TORT, (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCTS LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE ONLINE SERVICES, EXCEED YOUR ACTUAL OR DIRECT DAMAGES, OR $100, WHICHEVER IS LESS.
Where permitted by applicable law, you agree to bring any and all actions within one (1) year from the date of the accrual of the cause of action and that actions brought after this date will be barred.
TERMS APPLICABLE TO NEW JERSEY CONSUMERS
No provision in these Terms shall apply to any consumer in New Jersey if the provision limits remedies for (i) negligence, (ii) products liability claims, (iii) the punitive damages laws, (iv) the New Jersey Uniform Commercial Code, or (v) failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft). The provisions of these Terms concerning the exclusion or limitation of certain damages are not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property. Wahlburgers reserves all rights, defenses and permissible limitations under the laws of New Jersey and under the laws of your state of residence.
GOVERNING LAW AND JURISDICTION
Access to and use of the Services and these Terms are governed by (i) the laws of the Commonwealth of Massachusetts, without regard to conflicts of laws principles. Any legal action or proceeding relating to your access to or use of the Online Services or these Terms shall be instituted only in the federal and state courts in the Commonwealth of Massachusetts in Suffolk County. By accessing or using the Online Services, you consent to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action of proceeding.
AGREEMENT TO ARBITRATE DISPUTES
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. YOU AND WAHLBURGERS AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
WE BOTH AGREE TO ARBITRATE. You hereby agree that any dispute between you and Wahlburgers and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this section, “Wahlburgers”) arising from or relating to (a) your misuse of the App, Rewards Program or any other Wahlburgers’ Online Service, (b) these Terms and their interpretation or the breach, termination or validity thereof or (c) the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration in Suffolk County, Commonwealth of Massachusetts administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules (available at www.adr.org), in effect on the date thereof. If there is a conflict between AAA Rules and the rules set forth in this Agreement to Arbitrate, the rules set forth in this Agreement to Arbitrate will govern. For purposes of this section, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA). Notwithstanding anything to the contrary in this Section, you and Wahlburgers each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights.
WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can.
PRE-ARBITRATION PROCEDURES. Prior to initiating any arbitration, the initiating party will give the other party at least 60-days' advance written notice of its intent to file for arbitration. Wahlburgers will provide such notice by e-mail to your e-mail address on file with Wahlburgers and you must provide such notice by e-mail to [email protected] with “Legal Dispute” appearing in the subject line. During such 60-day notice period, we agree to endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration.
ARBITRATION PROCEDURES. To initiate arbitration, you or Wahlburgers must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043.
(3) Send one copy of the Demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Each party shall pay their own expenses and fees, including their own attorneys’ fees, arising from arbitration, unless the arbitrator determines that your claims were improper or frivolous, in which case the arbitrator may require you to reimburse us for certain fees and expenses in accordance with the Rules.. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Wahlburgers for all fees associated with the arbitration that Wahlburgers paid on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
The arbitration and information disclosed during arbitration may not be disclosed to any third-party except as required by law. The parties will not make any comments or announcements to the public about the subject matter or outcome of any arbitration.
SINGLE ARBITRATOR; AUTHORITY OF ARBITRATOR. Arbitration shall be before one (1) arbitrator who shall have exclusive authority to resolve any disputes arising under these Terms or with regard to the Online Services, including as to the enforceability and/or formation of this agreement to arbitrate made between you and Wahlburgers. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction, but will have no precedential effect. The arbitrator shall not have the authority to award damages outside of those set forth in these Terms.
NO CLASS ACTIONS. Wahlburgers and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither Wahlburgers nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis.
WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Wahlburgers in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WAHLBURGERS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
OPT-OUT OF AGREEMENT TO ARBITRATE. You can decline this agreement to arbitrate by emailing Wahlburgers at [email protected] and providing the requested information as follows: (1) Your Name; (2) the URL of the Terms and Agreement to Arbitrate Disputes; (3) Your Address; (4) Your Phone Number; (5) and clear statement that you wish to opt out of this arbitration provision in the Terms. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept the Terms by using the App, Rewards Program or other Wahlburgers’ online services. Upon receipt of such an opt out request, we will terminate any accounts you may have with any of our Online Services, and you should immediately stop using and/or accessing any of our Online Services.
If any provision of the agreement to arbitrate in this section is found unenforceable, the remaining arbitration terms will be enforced. In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, then such dispute between us arising under the Terms or your misuse of the App, Rewards Program or other Wahlburgers; online services will be subject to the jurisdiction and venue of the state and federal courts located in Boston, Massachusetts, and governed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules.
LINKING TO WAHLBURGERS SITE
You may not link to the Wahlburgers Online Services on your website or elsewhere without Wahlburgers’ prior written consent. If Wahlburgers grants its consent, additional terms may apply. You shall pay for all costs and expenses incurred by Wahlburgers to enforce this clause.
NOTICE TO RESIDENTS OF CALIFORNIA
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
The provider of the Online Services is Wahlburgers Franchising LLC, 350 Lincoln Street, Suite 2501, Hingham, MA 02043.
You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210. Their website is located at: www.dca.ca.gov.
Any California residents under the age of eighteen (18) who have registered to use the Online Services and who have posted content or information on the Online Services, can request that such information be removed from the Online Services by contacting us at [email protected] Requests must state that the user personally posted such content or information and detail where the content or information is posted. We will make reasonable, good faith efforts to remove the post from prospective public view.
Your use of the Online Services constitutes electronic communication with Wahlburgers. When you communicate with us via the Online Services or any other form of electronic media, such as email, you are communicating with us electronically. You agree that we may communicate electronically, and that any such electronic communications, including notices, disclosures, agreements, and other communications are equivalent to written communications, satisfy any legal or contractual requirement that such communications be in writing, and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
These Terms constitute the entire agreement among the parties relating to the subject matter hereof, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written between the parties with respect to any Online Services provided by Wahlburgers. Notwithstanding the foregoing, you may also be subject to additional terms and conditions, posted policies, guidelines, or rules that may apply when you use the Online Services, use or access the services, content or software of our affiliates, third parties or collaborating partners, or enter our sweepstakes, promotions, or contests.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not impact the validity and enforceability of the remaining provisions. If any clause or provision set forth in these Terms is determined be illegal, invalid or unenforceable under present or future law, the clause or provision shall be deemed to be deleted without affecting the enforceability of all remaining clauses or provisions. Only a specific, written waiver of any of the provisions of these Terms, signed by an authorized representative of Wahlburgers, shall have any legal effect. You may not transfer any of your rights or obligations under these Terms, in any way. All of Wahlburgers’ rights and obligations under these Terms are freely assignable for any reason, including without limitation, in connection with a merger, acquisition, sale of assets, by operation of law or otherwise. Headings contained in these Terms are inserted for convenience of reference only and shall not in any way define or affect the meaning, construction or scope of any of the provisions contained in these Terms.
FOR MORE INFORMATION
If you have any questions regarding any of these Terms, you can contact us at [email protected], call us at 1-781-749-4972, send us a fax at 1-781-735-4751, or write to us at Wahlburgers, 350 Lincoln Street, Suite 2501, Hingham, MA 02043.