By submitting your application to become a Operator (the "Application"), you are confirming that you: (a) have fully read the Agreement; (b) understand all of the terms and conditions of the Agreement; and (c) agree to be fully bound by the Agreement.
This Agreement may be amended or modified by Webmation after providing Operator, with seven (7) days prior written notice sent to the email address supplied by Operator with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Should we make any such amendments or modifications and notify you of same as set forth above and you continue to use the Webmation Platform at any time after seven (7) days from the date of the notice, such use shall be conclusive evidence that the Operator has received, read and consented to the Agreement as amended or modified and further has agreed to comply with, and be bound by, all of the terms and conditions contained within the Agreement as amended or modified at that time. (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).The latest version of the Agreement will be posted on the Site, and you should review the Agreement prior to each use of the Webmation Platform. Therefore, you should regularly check the Site for updates and/or changes.
1. Language of the Agreement
1.1 Where Webmation has provided you with a translation of the English language version of the Agreement, then you agree that the translation is provided for your convenience only and that the English language versions of the Agreement will govern your relationship with Webmation.
1.2 If there is any disparity between the English language version of the Agreement and the translated version provided for your convenience, the English language version shall control.
2. Enrollment in the Webmation Platform
2.1 To begin the enrollment process, you must submit a complete and accurate online order form, Work Order or Master Contractor Agreement ("Application") to Webmation. To join the Webmation Platform as a Operator, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the Webmation Platform. Webmation will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supply with your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Webmation of same to reflect such changes in your Operator profile. Webmation reserves the right to request additional information you at any time, including but not limited to suppliers invoices, a government issued identification such as a passport or driver's license, business licenses or voided check. Webmation may also request permission to inspect your business location. If you refuse any of these requests, your use of the Webmation Platform ("WM Account") may be suspended or terminated.
2.2 Operator accepts the terms and conditions contained in this Agreement by completing Application. The Agreement is effective as of the date that Operator submits the Application (the "Effective Date"), provided that Webmation does not reject the Application. Webmation may reject your Application and/or terminate your participation in the Webmation Platform at any time and for reasons stated below, in Webmation's sole discretion. Such reasons may include, without limitation, where Webmation believes that: (a) you are in any way in breach of the Agreement; (b) any content made available by and through your website generated through use of your WM Account on the Webmation Platform or any of the products and/or services ("Products") offered by Operator are unsuitable for the Webmation Platform for any reason including, without limitation, that the Content contain or links to, or that the Products consist of, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (c) you, at any time, are conducting commercial activities that do not fully comply with all applicable local, state and federal laws, rules and regulations; and (d) you fail to pay any Webmation Platform fees within seven (7) days of receipt of invoice.
2.3 Webmation does not represent or warrant that the information posted in the Webmation Platform is accurate, complete or appropriate. You understand and agree that Webmation is not responsible or liable in any manner whatsoever for your inability to use the Webmation Platform. You understand and agree that Webmation shall not be liable to you or any third party for any claim in connection with your use of the Webmation Platform.
2.4 You agree not to access (or attempt to access) the Webmation Platform by any means other than through the interface that is provided by Webmation, unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Webmation. You specifically agree not to access (or attempt to access) the Webmation Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Webmation Platform.
2.5 You agree that you shall not engage in any activity that interferes with or disrupts the Webmation Platform (or the servers and networks which are connected to the Webmation Platform).
2.6 Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Webmation, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Webmation Platform or your WM Account for any purpose whatsoever. Violation of this Section 2.6 and Section 8 below shall subject you to any and all damages as set forth under this Agreement as well as those provided for by all applicable federal and state law.
2.7 You agree that you are solely responsible for (and that Webmation has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Webmation may suffer) of any such breach.
3. Passwords and WM Account Security
3.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any WM Account you use to access the Webmation Platform.
3.2 Accordingly, you agree that you will be solely responsible to Webmation for all activities that occur under your WM Account.
If you become aware of any unauthorized use of your password or of your account, you agree to notify Webmation immediately.
4. Operator/WM Account
4.1 Webmation grants to Operator a non-exclusive, non-transferable, revocable and limited license to use the Webmation Platform for a fee, if applicable, as set forth herein below, in accordance with the terms, and during the term, of the Agreement. The Webmation Platform enables interested Operators to: (a) attract and register third party customers ("Customers") that may then Products on the applicable WM Account; (b) promote their business online and communicate with Customers on the applicable WM Account; and (c) manage all aspects of the WM Account including, items, services, pricing, coupons, reward programs, receiving payments and establishing rules for orders (d) serve Content and/or any media files including, but not limited to videos, images, flash banners, and html files on the Webmation Platform.
4.2 Customers who buy Products or perform any other transaction through the applicable WM Account ("WM Account Customers") shall not be deemed to be the customers of Webmation. Customers that enroll in Operator's WM Account shall not be deemed to be the customers, clients or business associates of Webmation. Webmation has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Operator and its WM Account Customers. Webmation shall have no obligation to resolve any dispute between Operator and its WM Account Customers. Operator expressly agrees to indemnify and hold harmless Webmation, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from any dispute between Operator and its WM Account Customers.
5.1 As an Operator, you agree that you are solely responsible for the Content that you and/or your WM Account Customers publish, transmit and/or post by and through the Webmation Platform. You agree, and shall require that your WM Account Customers agree in writing, to use the Webmation Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Content that you and/or your WM Account Customers post on the Webmation Platform, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) "stalk" or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Content are endorsed by Webmation, without our specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express consent and in conformance with all applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Content that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Content that do not fully comply with all applicable local, state and federal laws, rules and regulations. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of this Agreement and your WM Account without notice, in the sole discretion of Webmation. Webmation reserves the right to pursue any and all legal remedies against Operators that engage in the aforementioned prohibited conduct. If we receive reports from our Upstream Service Provider that you are transmitting chain letters, spam or junk-email, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence and Webmation reserves the right to automatically suspend or terminate your WM Account.
5.2 Without limiting the foregoing, Webmation may terminate and/or suspend any Content at any time and for any reason, in Webmation's sole discretion. Operator must immediately remove such Content after any such suspension or termination, as applicable.
5.3 Notwithstanding the foregoing, Webmation undertakes no responsibility to monitor or otherwise police: (a) the Content posted by you and/or your WM Account Customers on the Webmation Platform; (b) the transmission, receipt or fulfillment of online orders; (c) any of the products and/or services offered including, without limitation, the applicable Products. You agree that Webmation shall have no obligations and incur no liabilities to you in connection with any such Content.
6.1 Operator grants Webmation license to act as the online reseller of Products on Operator's behalf for the purpose of transmitting online orders through the Webmation Platform to the Operator for fulfillment. Operator will receive compensation for resold orders as outlined in Sections 11 and 13 below.
6.2 Webmation reserves the right to prohibit the marketing of any Products at any time and for any reason, in Webmation's sole discretion. Operator must immediately cease marketing such Products after any such prohibition.
Webmation operates the Webmation Platform as a neutral host, and Webmation does not regularly monitor, regulate or police the use of the Webmation Platform by any of its participants. The participation in the Webmation Platform by a Operator and WM Account Customer or otherwise does not constitute an endorsement by Webmation of that Operator, WM Account Customer or other third party. Webmation is not responsible or liable for the acts, omissions, agreements, promises, Content, Products, order fulfillment, merchant account or transaction administration, other products, services, comments, opinions, advice, statements, offers and other information of any Operator, WM Account Customer or other third party using the Webmation Platform.
8. Proprietary Rights
8.1 Operator grants to Webmation a royalty free, worldwide license ("Operator License") to: (a) display on, and distribute through, the Webmation Platform, Site and in related marketing material produced and distributed by Webmation, the Content and any other information posted in the Webmation Platform or otherwise made available by Operator, its Advertisers and/or Customers by and through Operator's WM Account. The Operator License shall last for the duration of the Agreement.
8.2 Webmation grants to Operator a limited, revocable, non-transferable license to use the Webmation Platform solely and exclusively as contemplated by the Agreement ("Webmation License").
8.3 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, and other matters related to the Webmation Platform is protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Operator of any part of the Webmation Platform, other than as contemplated hereunder, is strictly prohibited.
8.4 Operator agrees that its use of the Webmation Platform, any Webmation logos, trademarks, features, services (as defined below) and other material made available by and through the Webmation Platform is subject to the Webmation License granted hereunder.
8.5 Operator does not acquire any ownership rights to the Webmation Platform or any material made available by and through the Webmation Platform. The availability of the Webmation Platform, and the associated material, does not constitute a waiver of any rights related thereto.
9. Term and Termination
9.1 Webmation may, in its sole discretion, terminate the Agreement at any time, with or without cause, upon thirty (30) days' prior written notice to Operator. Operator may, in its sole discretion, terminate the Agreement upon thirty (30) days' prior written notice to Webmation after Operator's Agreement Term is completed, with the exception of Managed Marketing Plans, which automatically renews for the same agreed upon term if not cancelled thirty (30) days' prior to the current Agreement Term ending.
9.2 If Operator's participation in the Webmation Platform expires, terminates or is suspended for any reason, Webmation may, with or without notice terminate or suspend all Content and WM Account activity immediately or, in Webmation's discretion, at any time thereafter.
9.3 Upon any expiration, termination or suspension of the Agreement and/or Operator's participation in the Webmation Platform: (a) the Webmation License and any and all other licenses and rights granted to Operator in connection with the Agreement shall immediately cease and terminate; (b) any and all confidential or proprietary information of Webmation that is in Operator's possession or control must be immediately returned or destroyed. If requested, Operator will certify in a writing signed by Operator or an authorized officer of Operator that all such confidential and/or proprietary information has been returned or destroyed; and (c) Operator is required to refund all outstanding Gift Card Program balances to WM Account Customers.
9.4 If Operator is terminated by Webmation for breach of the Agreement, Operator shall not be eligible to enter into a new Operator Agreement with Webmation, or any other agreement for other Webmation products and/or services, and any attempt to do so shall be null and void.
9.5 If Operator is terminated by Webmation for breach of the Agreement, including for non-payment, Webmation reserve the right to sell all Operator's data including personally identifiable information for their customers to any person or company in an effort to recoup any outstanding balances. Webmation may use Operators data in the process to sell the data. Any profit gained in such a transaction will be realized by Webmation only.
9.6 Obligations that, by their nature, would survive any termination of the Agreement including, without limitation, Sections 11, 13, 15, 16, 17, 18, 19, 20, 21, 22, 24, and 25, shall survive any termination of the Agreement.
10. Free Periods
10.1 One (1) Month Free. Webmation may, in its sole discretion, offer Services for a period of One (1) Month from the Effective Date (the "Free Month Period"), during which time only the Edition Monthly Fee will be waived and all other Webmation Platform fees will still apply (As set forth in Section 11 below). Operator agrees that its use of the Webmation Platform after the Free Month Period or failure to cancel their WM Account within the Free Month Period will result in Operator being responsible for all Webmation Platform Fees as outlined in Section 11 below after the Free One Month Period.
11. Webmation Platform Fees
11.1 In consideration for Operator's use of the Webmation Platform, Operator agrees to pay the fees described in this Section 11. The monthly billing cycle begins on the Effective Date and all monthly fees reoccur on the same calendar date each month ("Monthly Billing Cycle").
11.2 Edition Fees. Upon registering for an account: (a) the credit card, debit card or bank account that you provided during registration ("Active Billing Account") will be charged the monthly fee as stated in your WM Application for each WM Account that you operate through the Webmation Platform ("Edition Monthly Fee"); or (b) you will receive an invoice for the Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by Webmation in its sole discretion. There shall be no proration or refund of the Edition Monthly Fee, overage fees, or additional service fees in connection with any cancelation. For so long as your account is activated, the Edition Monthly Fee will be due and payable upon registering for an account, and will recur on the same day of each new month, and you will be required to pay all applicable Edition Fees for that month's access to the Webmation Platform
11.4 Resold Product Fees. In consideration of Webmation reselling, processing and facilitating the online order of Products, the Operator will pay Webmation a commission as stated in your WM Application for each applicable order made through the Webmation Platform.
11.5 SMS Printer Fees. If the Operator elects to receive online order notifications from the Webmation Platform to the Webmation SMS Printer ("SMS Printer"), a separate SMS Printer per location is required with an accompanying data plan through Webmation. Each SMS Printer may be purchased for a one-time fee of $299.95 and $25.00/month data plan fee to receive SMS Order Notifications. The monthly SMS Printer Data Plan Fee is waived for Professional Edition WM Accounts. Webmation will at its sole discretion buy back an SMS Printer that is in excellent and working condition for up to 100% the purchase price, up to one (1) year of activation.
11.6 Fax and IVR Notification Fees. If the Operator elects to receive online order notifications from the Webmation Platform to their fax machine and receive an automated IVR phone call to verify order notification, the Operator must provide his own fax machine and a valid confirmation phone number. Each fax with phone confirmation sent to the Restaurant is an additional 20 cent per notification, including requests to resend the fax. The Fax IVR Notification Fee is waived for Professional Edition WM Accounts.
11.7 Chargeback Fees. In the event of a Chargeback to Operator's WM Account, the amount of the transaction may be reversed or charged back (a "Chargeback") and a $25.00 Chargeback Fee added to your account per Chargeback if the transaction is (a) disputed; (b) is reversed for any reason by the processing credit card companies, such as Visa, MasterCard, American Express or Discover ("Card Networks"); (c) was not authorized or we have any reason to believe that the transaction was not authorized; (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.
11.8 Webmation's authorization to provide and bill for your use of the Webmation Platform is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. All Fees are payable in United States currency, and such Fees will appear on your Active Billing Account bill as "Webmation" You acknowledge and agree that Webmation will not obtain additional authorization from you for each monthly billing or fees.
11.9 Our Set-Off Rights. To the extent permitted by law, we may set off against your WM Account balance ("Balance") for any obligation you owe us under this Agreement, including with limitation any Chargebacks and Refunds. All Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds and then and thereafter from your Balance into the Deposit Bank Account on file provided by Operator ("Deposit Account"). If the amount you owe us exceeds your Balance, we may charge or debit a payment instrument registered in your WM Account or any connected WM Account (as well as set off against any Balance in any connected WM Account). Your failure to fully pay amounts that you owe us on a demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, collection agency fees, and any applicable interest.
11.10 Operator shall be responsible for paying any and all applicable sales tax (if any) due to all taxing authorities arising from, or in connection with, Operator's participation in the Webmation Platform including, without limitation, taxes and related fees, costs and penalties incurred by Operator, its Employees and/or Customers pursuant to Chapter 57 of the Laws of 2009 amending the New York State Tax Law.
11.11 Webmation is obligated to report annually to the Internal Revenue Service ("IRS"), as required by law, your name, address, Tax Identification Number (such as Social Security Number (SSN) or Employer Identification Number (EIN)), the total dollar amount of the payments you directly receive in a calendar year from Webmation, and the total amount dollar amount of the payments you receive for each month in a calendar year. Webmation will send Operator a 1099 each year reflecting this amount.
11.12 Failure to use the Webmation Platform does not constitute a basis for refusing to pay any of the associated Fees. The following conditions apply to any cancellation: (a) you shall not receive any pro-rata refund of your Fees for partial months; and (b) you shall not receive any refund for amounts previously paid up to the date of cancellation or termination and you remain liable for any and all unpaid charges billed by Webmation.
11.13 You agree to be bound by Billing Practices of Webmation in effect at any given time. Upon prior written notice to you (with e-mail sufficing), Webmation reserves the right to change its Billing Practices whenever necessary, in its sole discretion. Webmation may change any Webmation Platform fees upon thirty (30) days prior written notice sent to the email address supplied by Operator with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Continued membership in the Webmation Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If you do not agree with these changes, you may cancel your Operator account at any time, but you will remain responsible for timely payment of any and all Fees that you have already incurred (including any applicable late fees).
11.14 Where Operator fails to make any scheduled payment for accrued Fees, such overdue amounts will be subject to interest charges in the amount of one and one half percent (1.5%) per month, compounded monthly. Operator's account may be deactivated, and access to the Webmation Platform and/or Site denied, for non-payment.
12. Webmation Platform Service
12.1 Edition Services. In connection with the services made available by Webmation to its Operators, Webmation shall provide such Operators with all features for their selected Edition as listed on http://webmation.com.
12.2 Webmation AD Network. Webmation at its sole discretion may display third party advertisements on order confirmation pages, email receipts and admin portal of Operator's WM Account. Basic Edition accounts may not turn off or block the ads from appearing on their WM Website and receive no compensation for the display of such advertisements. Professional Edition accounts may elect to turn off third party advertisements on their customer's order confirmation pages and email receipts or receive 25% gross ad revenue.
12.3 Webmation Support. All Webmation support, including, but not limited to email, chat, and phone support will be provided in the English Language only. Although Webmation may make the Webmation Platform available in different languages, all customer support will be provided in English only.
12.4 Webmation may make available, for additional fees that Webmation shall publish from time-to-time, enhanced reporting capabilities and/or other services that are not included in the standard Webmation services packages.
12.5 Webmation has subsidiaries and affiliated legal entities around the world ("Subsidiaries and Affiliates"). Sometimes, these companies will be providing services to you on behalf of Webmation itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
12.6 Webmation is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Webmation Platform which Webmation provides may change from time to time without prior notice to you.
12.7 The Webmation Platform which you use may be updated from time to time from Webmation. These updates are designed to improve, enhance and further develop the Webmation Platform and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Webmation to deliver these to you) as part of your use of the Webmation Platform.
12.8 You acknowledge and agree that while Webmation may not currently have set a fixed upper limit on the number of transactions you may send or receive through your WM Account or on the amount of storage space used for the provision of your WM Account, such fixed upper limits may be set by Webmation at any time, at Webmation's discretion.
13. Operator Compensation
13.1 Funds owed to Operator from resold orders of Products by Webmation through the Webmation Platform ("Settlement Balance") will settle weekly and may take 3-5 business days from settlement to reach the Operator's Deposit Account. Operator may elect to receive Daily Settlements for an additional fee of $9.95/month.
13.2 Refunds, Reversals, Chargebacks. All Refunds, Reversals and Chargebacks will be deducted from your Settlement Balance prior to being deposited into your Deposit Account. If your WM Account has a negative Settlement Balance Webmation will debit your Deposit Account for the amount owed as stated in Section 11 of this Agreement.
13.4 Reserves. Webmation, in its sole discretion, may place a Reserve on funds when Webmation believes there may be a high level of risk associated with your Account. If Webmation places a reserve on your WM Account, Webmation will send you notice specifying the terms of the Reserve. The terms may require a certain percentage of the amounts received are held for a certain period of time, or that a certain amount of money is held in reserve, or anything else that Webmation determines is necessary to protect against the risk associated with your WM Account. Webmation may change the terms of the Reserve at any time by providing you with the notice of the new terms.
13.5 Disputed Transaction Holds. If a WM Account Customer files a dispute, claim, chargeback or reversal on a payment you received, Webmation may place a temporary hold on the funds in your Settlement Balance to cover the amount of the liability. If you win the dispute, Webmation will temporarily lift the hold. If you lose the dispute, Webmation will remove the funds from your Settlement Balance.
14. Other Content
14.1 The Webmation Platform may include hyperlinks to other web sites or content or resources. Webmation may have no control over any web sites or resources which are provided by companies or persons other than Webmation.
14.2 You acknowledge and agree that Webmation is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3 You acknowledge and agree that Webmation is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. General Legal Terms
15.1 Sometimes when you use the Webmation Platform, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Agreement does not affect your legal relationship with these other companies or individuals.
15.2 The Agreement constitutes the whole legal agreement between you and Webmation and govern your use of the Webmation Platform (but excluding any services which Webmation may provide to you under a separate written agreement), and completely replace any prior agreements between you and Webmation in relation to the Webmation Platform.
15.3 You agree that Webmation may provide you with notices, including those regarding changes to the Agreement electronically by email and/or posting in the WM Admin Console announcements section of the Webmation Platform.
15.4 You agree that if Webmation does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Webmation has the benefit of under any applicable law), this will not be taken to be a formal waiver of Webmation's rights and that those rights or remedies will still be available to Webmation.
15.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
15.6 You acknowledge and agree that each member of the group of companies of which Webmation is the parent shall be third party beneficiaries to the Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Agreement.
15.7 The Agreement, and your relationship with Webmation under this Agreement, shall be governed by the laws of the State of Virginia without regard to its conflict of laws provisions. You and Webmation agree to submit to the exclusive jurisdiction of the courts located within the county of Fairfax, Virginia to resolve any legal matter arising from the Agreement. Notwithstanding this, you agree that Webmation shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
16. Representations and Warranties
Operator hereby represents and warrants to Webmation as follows:
16.1 The Agreement has been duly and validly executed and delivered by Operator and constitutes Operator's legal, valid and binding obligation which is fully enforceable against Operator in accordance with its terms;
16.2 Operator is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Operator's duties and obligations pursuant to the Agreement;
16.3 Operator understands and agrees that Webmation will enter into similar agreements with other Webmation Operators in direct competition with Operator;
16.4 Operator understands and agrees that Operator has independently evaluated the desirability of participating in the Webmation Platform and that Operator has not relied on any representation and/or warranty other than those set forth in the Agreement;
16.5 The execution, delivery and performance by Operator of the Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Operator is subject; (b) any order, judgment or decree applicable to Operator; (c) any provision of Operator's corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Operator;
16.6 Operator's performance under the Agreement, the Content, WM Account, Products, Advertiser Websites and Publisher Websites, and any and all material featured and/or linked to therein, will not: (a) invade the right of privacy or publicity of any third person; (b) involve any libelous, obscene, indecent or otherwise unlawful material; (c) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (d) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
16.7 The Content, products and any and all other information posted by Operator to the Webmation Platform will comply with the provisions of Section 5.1.
16.8 There is no pending or, to the best of Operator's knowledge, threatened claim, action or proceeding against Operator; and
16.9 Operator will be solely responsible for the material and Content that appear in the WM Account.
16.10 Operator will not remove SMS Printer SIM card to use on any other device. In the event Operator misuses included SMS Data Plan, they under their account will be terminated and they will be responsible for all overage fees plus damages of $500.00.
17. Publicity and Announcements
The Parties intend to make a good faith effort to jointly and independently promote the partnership through press releases, websites and related media, and may include not just the Operator and Webmation brands but also those of Webmation' clients' using the Services. The Parties will use best efforts to coordinate any such publication and shall notify each other of any planned publications, announcements or press releases relating to this Agreement and the Services described herein. The Parties acknowledge that Webmation is granted consent to include the Operator name, logo, images, Content and likeness in its Roster of Clients, Web Sites and other marketing materials. Operator shall not create, publish, distribute or permit any written material that makes reference to Webmation or Webmation without first submitting such material to Webmation and receiving prior written consent from Webmation, which Webmation may withhold in its sole discretion; provided, however, that Operator can promote its WM Account by publishing and promoting the Uniform Resource Locator ('URL') associated with the applicable WM Account in accordance with any and all applicable state and federal laws, statutes, rules and regulations.
18. Collection and Use of Data
Webmation collects information about a Operator's WM Account-related transactions from the Webmation Platform. Webmation reserves the right to utilize this data on a non-personally identifiable, aggregate basis, which may include Operator's information, to analyze the performance of the Webmation Platform and/or Site, monitor the use of the Webmation Platform and promote Webmation Platform and/or Site performance and functionality. When Operator's account is disabled, inactive or paused, including for non-payment, Webmation reserves the right to utilize Operator's personally identifiable information for their advertisers and affiliates.
Operator agrees to indemnify, defend and hold Webmation, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from any claim related to:
A. Content, Products and any and all other information, products and/or services posted, made available and/or linked to in connection with the Content, and/or Operator's participation in the Webmation Platform;
B. Any act or omission of any WM Account Customer;
C. The transmission, receipt or fulfillment of orders placed through the Webmation Platform;
D. Operator's breach of the Agreement and/or any representation or warranty contained herein;
E. Any claim that Webmation is obligated to pay any taxes in connection with Operator's participation in the Webmation Platform; and/or
F. Operator's participation in the Webmation Platform in any manner whatsoever.
20. EXCLUSION OF WARRANTIES
20.1 NOTHING IN THIS AGREEMENT, INCLUDING SECTIONS 20 AND 21, SHALL EXCLUDE OR LIMIT WEBMATION'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
20.2 IN PARTICULAR, WEBMATION , ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(C) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED
20.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBMATION PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
21. DISCLAIMERS/LIMITATION OF LIABILITY
21.1 THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WEBMATION HAS NO LIABILITY, WHATSOEVER, TO OPERATOR, ANY WM ACCOUNT CUSTOMER, ADVERTISER, PUBLISHER OR ANY OTHER THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR OPERATOR'S USE OF, OR INABILITY TO USE, THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES. WEBMATION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT OPERATOR'S USE OF THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WEBMATION IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN WEBMATION AND OPERATOR. THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES WOULD NOT BE PROVIDED TO OPERATOR WITHOUT SUCH LIMITATIONS. WEBMATION MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE WEBMATION PLATFORM, SITE, ORDER TRANSMISSION RECEIPT AND/OR ASSOCIATED PRODUCTS AND/OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OPERATOR FROM WEBMATION THROUGH THE WEBMATION PLATFORM, SITE AND/OR OTHERIWSE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
21.2 UNDER NO CIRCUMSTANCES SHALL WEBMATION BE LIABLE TO OPERATOR, WM ACCOUNT CUSTOMERS, CUSTOMERS, ADVERTISERS OR ANY OTHER THIRD PARTY IN ANY MANNER WHATSOEVER ARISING FROM OPERATOR'S PARTICIPATION IN THE WEBMATION PLATFORM. WEBMATION'S MAXIMUM AGGREGATE LIABILITY TO RESTAURANT OPERATOR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). OPERATOR RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
22. Force Majeure
Other than for payment obligations arising hereunder, both parties agree that neither party will be liable, or be considered to be in breach of the Agreement, on account of either party's delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond either party's reasonable control and such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
23. Electronic Signatures and Notices
You acknowledge and agree that by clicking on the "submit" button, or such similar links as may be designated by Webmation as a means of accepting the Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY WEBMATION. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
24. Dispute Resolution Provisions
The Agreement shall be treated as though it were executed and performed in the State of Virginia and shall be governed by and construed in accordance with the laws of the State of Virginia (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of the Agreement, or the breach of same by any party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Mclean, Virginia, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending arbitration. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Webmation and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that Webmation incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement and does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above.
25.1 Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.
25.2 Operator agrees that any unauthorized and/or unlawful use of the Webmation Platform would result in irreparable injury to Webmation for which monetary damages would be inadequate. In such event, Webmation shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against Operator without the need to post a bond. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Webmation.
25.3 Webmation and Operator are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Operator has no authority to make or accept any offers or representations on behalf of Webmation. Operator is prohibited from making any statement, whether on the Webmation Platform or otherwise, that could possibly contradict anything in this Section 25.3.
25.5 Webmation's failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
25.6 Any attempt by any individual, whether or not Operator, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Webmation Platform is a violation of both criminal and civil law and Webmation will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
25.7 Operator is not permitted to transfer any rights and obligations pursuant to the Agreement without the express written consent of Webmation. Any attempt to do so will result in the immediate termination of the Agreement. Webmation may assign or transfer any rights and obligations pursuant to the Agreement without the consent of Operator. The Agreement will be binding on, inure to the benefit of and be enforceable against Webmation's successors and assigns.
25.9 Webmation may provide notices to Operator by posting notices or links to notices in the Operator account area. Notices to Operator may also be made via e-mail, regular mail, overnight courier or facsimile at Operator's contact addresses of record as posted on the Site. If Operator wishes to provide notice to Webmation, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: 20110 Ashbrook Place Ste 175, Ashburn VA 20147. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by authorized Webmation personnel.
Last Updated: March 11, 2019