WABEE, INC.

 

USER TERMS AND CONDITIONS

 

  1. GENERAL

Wabee Inc. (“Wabee,” “we,” “us,” and/or “our”) provides its website located at www.Wabee.com (the “Site”) and its related service that provides users (“you”, “User”, and/or “your”) with the ability and eligibility to earn cash and other incentives back (collectively, “Rewards”) from various participating merchants (such services and the Site, together with our mobile and other software applications, collectively, the “Service(s)”), subject to the following terms and conditions (as amended from time to time, these “Terms and Conditions”). We reserve the right, at our sole discretion, to change or modify portions of these Terms and Conditions at any time without further notice. You should periodically visit this page to review the current Terms and Conditions so you are aware of any revision to which you are bound. We will post changes to these Terms and Conditions on this page and indicate the date these terms were last revised. Your continued use of the Service after any such change(s) constitutes your acceptance of the new Terms and Conditions. If you do not agree to abide by these or any future Terms and Conditions, do not use or access (or continue to use or access) the Service. It is User’s responsibility to regularly check the Site to determine if there have been changes to these Terms and Conditions and to review such changes. In addition, when using certain services, you shall be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at http://www.Wabee.com/privacy/. All such terms are hereby incorporated by reference into these Terms and Conditions.  

These Terms and Conditions constitute the entire agreement between you and Wabee and govern your use of the Service, superseding any prior agreements between you and Wabee with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. These Terms and Conditions shall be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration as set forth below, you and Wabee agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles, California. The failure of Wabee to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. Notices to you may be made via either email at any registered email address, or regular mail. The Service may also provide notices to you of changes to these Terms and Conditions or other matters by displaying notices or links to notices generally on the Service.

  1. THE SERVICE.

 

    1. REGISTRATION. You are required to register with Wabee through the Site in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself and your telephone number to reach you, and to fill out all of the fillable spaces in the form marked ‘required’ as prompted by the Service’s registration form (“Registration”). Registration data and certain other information about you are governed by our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Service, with or without Registration. In addition, if you are under 18 years old, you may use the Service, with or without Registration, but only with the approval of your parent or guardian, whose approval shall be deemed received upon your use of the Service. You further agree that you will not provide us or Rewards Providers with any mobile device numbers not assigned to you. 
    2. USER ACCOUNT; PASSWORD AND SECURITY.  You are responsible for maintaining the confidentiality of your password and/or mobile device, as applicable, and account, if any, and are fully responsible for any and all activities that occur under your password and/or mobile device, as applicable, or account. You agree to (a) immediately notify Wabee through this Section IV(k) of any unauthorized use of your password and/or mobile device, as applicable, or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Wabee will not be liable for any loss or damage arising from your failure to comply with this Section.
    3. MOBILE SERVICES.  The Service shall include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse and otherwise access the Service from a mobile device and (iii) the future ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we and Rewards Providers may communicate with you by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Wabee account information to ensure that your messages are not sent to the person that acquires your old number.
    4. MODIFICATIONS TO SERVICE.  Wabee reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Wabee shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

  1. REWARDS.  

 All Rewards made available in connection with the Service are promotional only. Such Rewards are made available directly by the relevant merchant providing such Reward (“Rewards Provider”) (not Wabee itself) and are redeemable solely for the applicable goods or services of such Rewards Provider. The Rewards Provider, not Wabee, is the provider of the Rewards and such goods and services and is solely responsible for redeeming any Rewards you obtain. Wabee will have no liability if a Rewards Provider refuses or fails to honor any Reward. In addition, the following terms and conditions also apply to Reward and cash back incentives:

  • Users must have an account balance of more than twenty five dollars ($25) in their Rewards account, accessible through the Site, to withdraw any cash. All cash withdrawals shall be made using Automated Clearing House (ACH), and are subject to its terms;
  • Users must have an active bank account to withdraw funds;
  • Use of any cash received by User related to purchasing alcoholic beverages shall be at the sole discretion of the Rewards Provider and is subject to compliance with applicable law;
  • Rewards cannot be combined with any other rewards, offers, vouchers, third party certificates, coupons, or promotions, unless otherwise specified by the Rewards Provider;
  • Rewards cannot be used for taxes, tips or prior balances, unless permitted by the Rewards Provider;
  • Reproduction or sale of any Reward is prohibited;
  • Any attempted redemption of Rewards not consistent with these Terms and Conditions or any other restrictions imposed by the Rewards Provider or Wabee (including any Reward-specific terms associated with a Reward) will render the Reward void;
  • Rewards are void to the extent prohibited by law;
  • Rewards may be applied only to the applicable products or services sold by the Rewards Provider that are the subject of such Rewards; and
  • Only one Reward can be used per redemption unless otherwise specified by the Rewards Provider.

 

  1. CONDITIONS OF USE.

 

    1. USER CONDUCT.  You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Wabee, are entirely responsible for all Content that you upload, post, email or otherwise transmit via the Service, and for all activities and events that you facilitate via the Service.
    2. COMMERCIAL USE.  Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use and may not be used for direct commercial endeavors.
    3. NON-USE OF FUNDS.  If you do not use Wabee program incentives for 12 consecutive months, or do not log into your account in that time, Wabee will deduct $50 every month from your Wabee Rewards account as a maintenance fee, until such account has zero balance. Wabee retains sole authority to cancel all accounts whose cash balance reads zero.
    4. THIRD PARTY WEBSITES.  The Service or third parties may provide links or other access to other sites and resources on the Internet (including Rewards Provider websites). Wabee has no control over such sites and resources and Wabee is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Wabee shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties (including Rewards Providers) while using the Service are between you and the third party, and you agree that Wabee is not liable for any loss or claim that you may have against any such third party.
    5. INDEMNITY AND RELEASE.  You agree to release, indemnify and hold Wabee and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
    6. DISCLAIMER OF WARRANTIES.  YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WABEE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. 

WABEE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

    1. LIMITATION OF LIABILITY.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT WABEE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WABEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL WABEE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID WABEE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). 

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

    1. ARBITRATION.  At User or Wabee’s election, all disputes, claims, or controversies arising out of or relating to the Terms and Conditions or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Los Angeles, California, before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms and Conditions. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in these Terms and Conditions and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms and Conditions, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
    2. TERMINATION.  You agree that Wabee, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service for any reason, including, without limitation, for lack of use or if Wabee believes that you have violated or acted inconsistently with the letter or spirit of these Terms and Conditions. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service may be referred to appropriate law enforcement authorities. Wabee may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms and Conditions may be effected without prior notice, and acknowledge and agree that Wabee may immediately deactivate or delete your account and all of your related Rewards. Further, you agree that Wabee shall not be liable to you or any third-party for any termination of your access to the Service.
    3. USER DISPUTES.  You agree that you are solely responsible for your interactions with any other user, Rewards Provider or third party in connection with the Service (or any third party service with which the Service is integrated), and Wabee will have no liability or responsibility with respect thereto. Wabee reserves the right, but has no obligation, to become involved in any way with disputes between you and any Rewards Provider or other third party in connection with the Service (or any third party service with which the Service is integrated). In addition, without limiting the foregoing, Wabee will have no liability or responsibility for any acts or omissions of Rewards Providers with respect to their use of any of your information or your interactions with them.
    4. CONTACT US.  Please contact us at support@Wabee.com to report any violations of these Terms and Conditions or to pose any questions regarding these Terms and Conditions or the Service.

 

WABEE, INC.

MERCHANT TERMS AND CONDITIONS

  1. GENERAL

During the length of the business relationship (“Term”) with a participating merchant (“Merchant”, or “you”, “your”), Wabee will provide the Wabee services and/or programs (collectively, “Wabee Program(s)”) described in these terms and conditions (“Terms and Conditions”), and any other Agreement separately executed by you, together with all exhibits attached thereto (together, the “Agreement”). In the event of any inconsistency among terms and conditions of the Agreement and these Terms and Conditions, the order of control shall be: (i) these Terms and Conditions, (ii) the Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Agreement executed by you, and, together with this Agreement and all attachments thereto, govern your use of all Wabee Programs.

  1. INTELLECTUAL PROPERTY RIGHTS

 

  1. CUSTOMER DATA.  Wabee is the sole and exclusive owner of all right, title and interest in and to any data provided to Wabee by your customers or any end user to Wabee in connection with the Wabee Programs, including without limitation all phone number and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data.
  2. WABEE PROGRAMS.  Wabee owns all right, title and interest in and to the Wabee Programs (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights in and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Wabee Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
  3. WEB PORTAL.  Wabee hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use Wabee’s hosted Merchant web portal (the “Portal”) for internal business purposes so long as your account with Wabee remains current and active. If Wabee provides you with a password to access the Portal, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Portal, and all source code, object code, software, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of Wabee. You shall refrain from permitting any third party to use your password or otherwise access the Portal. Wabee shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement, or your Wabee account is otherwise terminated for any reason.
  4. DISPLAY OF CONTENT.  Without limiting any of Wabee’s rights set forth in the Agreement, Wabee reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed on the Wabee website, any portion of the Wabee Program, and/or within any print materials, including without limitation any information and/or content that, in Wabee’s view, contains content or links which do not meet Wabee’s specifications or requirements. In addition, Wabee shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the Wabee Program (including without limitation any mobile application and/or software) at any time.

 

  1. RESTRICTIONS.

 

  1. You will use the Wabee Programs solely for your internal business purposes; and
  2. You will not, for yourself, any of your affiliates or any third party:
    1. Sell, rent, lease, license or sublicense, assign, distribute, or transfer the Wabee Programs, 
    2. Modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the Wabee Programs, 
    3. Copy any tangible versions of the Wabee Programs, or 
    4. Remove from any of the Wabee Programs any language or designation indicating the confidential nature thereof or the proprietary rights of Wabee. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Wabee Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. Wabee retains the right, in its sole discretion but without any obligation on the part of Wabee to monitor or evaluate any communications, to approve, modify or refuse any Wabee-related communications or proposed communications or messages to your customers or any Wabee end users.

 

  1. FEES; PAYMENT TERMS; TAXES

 

  1. Wabee’s fees shall be based on a total percentage of the sales generated, and pursuant to the terms in the Agreement between Wabee and Merchant.  Wabee reserves the right to amend the fees payable for the Wabee Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next payable period.
  2. When you provide your payment information to Wabee, you are providing Wabee with an authorization to process any and all payments as outlined in the Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, Wabee may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. Wabee will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.
  3. You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Wabee Programs.
  4. Notwithstanding anything herein to the contrary, Wabee, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Wabee Programs, at any time, upon electronic or other notice to you for any other breaches of the Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by Wabee to collect any unpaid amounts owed by you.
  5. Any and all funds deposited using a credit card or debit card are none refundable.
  6. In the event, you would like to leave the WaBee program and withdrawal your funds from the program you can withdrawal your remaining funds using the "Withdrawal" button in your user portal. If the dollar amount is less than $25 you will have to contact support@wabee.com to be issued a check. 

 

  1. TERM; TERMINATION; SURVIVAL.

 

  1. When you make changes through your Portal, you are providing explicit authorization for Wabee to process payment on your existing Wabee account and method of payment without any further authorization necessary from you.
  2. The Agreement will remain in full force, and current fees will be charged to the payment method on file unless Wabee is otherwise notified of a cancellation in writing.
  3. Merchant may cancel its account, thereby terminating this Agreement, solely in accordance with the procedure outlined in its Agreement with Wabee and outlined in the Portal.
  4. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, Wabee may terminate the Agreement and/or your access to one or all Wabee Programs in the event you fail to remain current in all fees due and owing to Wabee or in the event you breach any of your obligations under the Agreement.
  5. In the event of any termination of the Agreement or any Wabee Program, Wabee shall be entitled to send e-mail and/or other communications to some or all of your Rewards Program members, notifying each such member of your termination of the Wabee Program. In addition to the foregoing permissible e-mail, Wabee shall be entitled to take other actions, at its discretion, to assist your Rewards Program members in protecting the points earned within the Wabee Program and providing them an opportunity to redeem points earned.  Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.

 

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

 

  1. Wabee warrants that Wabee has the authority to enter into this Agreement.
  2. You represent, warrant and covenant to Wabee that: 
    1. You have the authority to enter into this Agreement; 
    2. You will only use the Wabee Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and 
    3. You will not use any Wabee Program to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).
  3. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, WABEE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, WABEE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE WABEE PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY WABEE PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF WABEE PROGRAMS AND THE INTERNET IS AT YOUR SOLE RISK. WABEE PROGRAMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL WABEE BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY WABEE PLATFORM. 
  1. CONFIDENTIAL INFORMATION.

 

  1. Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of Wabee. 
  2. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. 
  3. The prohibitions contained in this Section will not apply to information: 
    1. Already lawfully known to the receiving party prior to disclosure by the disclosing party; 
    2. Independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information;
    3. Disclosed in published materials; 
    4. Generally known to the public; or 
    5. Lawfully obtained from any third party. 
  4. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

 

  1. DISPUTE RESOLUTION; GOVERNING LAW.

 

In the event of a reward dispute or mistake between a Merchant and User, Wabee may in its sole discretion and without liability of any kind unilaterally make adjustments to User Rewards; it being understood that Wabee shall not be obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of California and you expressly agree to the exclusive jurisdiction for any claim or dispute with Wabee in the federal and state courts within the jurisdiction of the United States District Court for the Central District of California. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

  1. INDEMNIFICATION.

 

You will defend, indemnify, and hold Wabee and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any Wabee Program or otherwise related in any way to any Wabee Program, your unauthorized use or misuse of the Wabee Programs or any unauthorized combination of any Wabee Program with any hardware, software, products, data or other materials not specified or provided by Wabee.

 

  1. LIMITATION OF LIABILITY.

 

Wabee’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to Wabee under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will Wabee be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of any Wabee Program, however caused and regardless of theory of liability.

 

  1. NOTICE. 

 

Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Agreement as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.

 

  1. ASSIGNMENT.

 

You may not, without the prior written consent of Wabee, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void.

 

  1. NO THIRD PARTY BENEFICIARIES.

 

The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

 

  1. UPDATES.

 

 

This Agreement may be changed by Wabee upon posting an updated version of the Agreement at Wabee’s website and/or within the applicable Wabee Program, any such change to become effective three (3) business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

 

  1. SEVERABILITY

 

If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

 

  1. FORCE MAJEURE.

 

Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Wabee provided prior to the force majeure event.

 

  1. RELATIONSHIP.

 

The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

  1. ENTIRE AGREEMENT.

 

The Agreement constitutes the entire agreement between Wabee and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.