The following Newk’s Eatery Gift Card Terms and Conditions (“Agreement”) describes the terms and conditions that apply to use of (1) Newk’s-branded gift cards that are purchased in store, through the mobile app and online, including plastic cards and digital gift cards (“Gift Cards”); and (2) Newk’s-branded promotional cards, codes or credits that are issued pursuant to a promotional, incentive, loyalty or rewards program (whether issued in electronic, plastic or other format) (“Promotional Cards” and, collectively with “Gift Cards,” “Cards”). This Agreement is between you, the Cardholder, and Newk’s Marketing Company, LLC (“Issuer”). By purchasing, accepting or using your Card, you agree to be bound by this Agreement. If you do not agree with this Agreement, do not purchase, use or accept the Card. IMPORTANT: This Agreement includes resolution of disputes by arbitration instead of in court.
- About Your Card. The Cards are issued by Issuer. Issuer is responsible for the operation and maintenance of the Card program. Issuer is the sole legal obligor to the Cardholder; provided, however, that Issuer may assign its obligations with respect to the Card at any time, in which case such assignee shall become the Issuer and sole legal obligor to the Cardholder. Newk’s Franchise Company, LLC, Newco Dining, LLC, Newk’s Holding Company, LLC and their affiliates and related entities (other than Issuer) bear no responsibility or liability for any Cards, and you hereby knowingly release Newk’s Franchise Company, LLC, Newco Dining, LLC and their affiliates and related entities (other than Issuer) from any and all liability or claims of any nature whatsoever arising in connection with the Card. Cards can be purchased in store, through the mobile app or online at http://www.newksmarketingcompany.com.
- Not for Resale. Card cannot be resold (or sold, in the case of Promotional Cards). Card is valid only if obtained at a Newk’s Eatery restaurant location or authorized third-party distributor. Card is not valid and will not be honored, and Issuer will not be liable, if obtained from unauthorized sellers, resellers or distributors, including through Internet auction sites.
- Balance Inquiry. For balance inquiry, visit newksmarketingcompany.com. The balance you receive when inquiring over the telephone or online is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase, but there may be occasions when the balance adjustment is delayed.
- Expiration/Deactivation. Gift Cards do not expire. Promotional Cards may expire; please see the terms on the Card itself for the expiration date, if any. No fees for inactivity or service fees apply. Issuer reserves the right to refuse to honor any Card in the event of a disputed credit card charge, bounced check or other failure of consideration.
- Cards are redeemable only for purchases of food and beverages at Newk’s Eatery restaurant locations in the United States, through the mobile app and at www.newks.com. Cards are not debit or credit cards. Cards have no cash value and may not be redeemed for cash (except as required by law). Cards are not redeemable to purchase another Card or towards previously purchased goods or services.
- Gift Cards may be reloaded with value. Promotional Cards are not reloadable.
- No Refunds. No refunds are permitted with respect to Cards.
- Lost, Destroyed Or Stolen Card. The value of any lost, destroyed or stolen Cards, or any Cards used without authorization, will not be replaced or replenished.
- Mandatory Binding individual Arbitration. Please read this section carefully. It affects legal rights that you may otherwise have and requires individual final and binding arbitration of most disputes instead of resolution in court.
Arbitration is the submission of a dispute to a neutral arbitrator, instead of a judge or jury, for a final and binding decision, known as an “award.” Arbitration provides for more limited discovery than in court, is subject to limited review by courts, and the result is confidential. Each party has an opportunity to present evidence to the arbitrator in writing or through witnesses. An arbitrator can only award the same damages and relief that a court can award under the law and must honor the terms and conditions in this Agreement.
ARBITRATION AGREEMENT, CLASS ACTION WAIVER, PUNITIVE DAMAGES WAIVER
You and Issuer agree that any dispute, whether at law or equity, arising out of or relating to this Agreement or your use of the Card, regardless of the date of accrual of such dispute, including but not limited to the arbitrability of any dispute and the interpretation, validity and/or the scope of this arbitration agreement, shall be resolved in its entirety by individual (not classwide or collective) binding arbitration, except that you or Issuer may take claims to small claims court if they qualify for hearing by such a court.
You and Issuer agree that any arbitration under this Agreement will take place on an individual basis and that class, mass, consolidated or combined actions or arbitrations or proceedings as a private attorney general are not permitted. You and Issuer agree that the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
You and Issuer both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages.
This agreement to arbitrate is intended to be broadly interpreted. This agreement to arbitrate extends to claims that you assert against other parties, including without limit claims against Newk’s Franchise Company, LLC, Newco Dining, LLC, Newk’s Holding Company, LLC and their affiliates and related entities.
The parties acknowledge that this Agreement evidences a transaction in interstate commerce. Notwithstanding the substantive law applicable to any arbitration, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act and the Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
This agreement to arbitrate shall survive termination of this Agreement. If it is decided that applicable law precludes enforcement of any of this arbitration agreement’s limitations as to a particular claim for relief, then that claim (and only that claim) shall be severed from the arbitration and may be brought in court. In addition, notwithstanding anything to the contrary, if any part of this agreement to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable.
Nothing herein shall be construed as consent by Issuer to the jurisdiction of any court with regard to claims unrelated to the use of your Card or this Agreement.
Arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To begin an arbitration proceeding, you must serve Issuer’s registered agent for service of process. Contact information for Issuer’s registered agent is available on the Mississippi Secretary of State Business Search website located at https://corp.sos.ms.gov/corp/portal/c/page/corpBusinessIdSearch/portal.aspx#.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Issuer will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Issuer will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.
Any arbitration will take place in or near the county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone to the extent permitted by the JAMS Rules.
The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application related to the arbitration, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
The arbitrator(s) will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The award of the arbitrator(s) shall be final and binding. Judgment on the award may be entered in any court of competent jurisdiction.
- Limitation Of Liability. ISSUER AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO CARDS INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT A CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
- Governing Law. The laws of the State of Tennessee, without regard to principles of conflict of laws, shall govern this Agreement, use of your Card and is the substantive law applicable to any claim or dispute that may arise out of or relate to this Agreement or your use of your Card.
- Notwithstanding anything herein to the contrary, if any part of this Agreement is deemed invalid or inapplicable, such provision shall be modified or restricted to the extent and in the manner necessary to render it valid, legal, and enforceable. If such provision cannot be so modified or restricted, it shall be excised from this Agreement without affecting the validity, legality, or enforceability of the remainder of this Agreement, which shall be fully enforced.
- Changes To Agreement. Issuer reserves the right to change this Agreement from time to time in its discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement at newksmarketingcompany.com.
- Issuer reserves the right to refuse to honor a Card where Issuer suspects that the Card was obtained fraudulently.