These Terms constitute an agreement between you and Newk’s Franchise Company, LLC and its parents, subsidiaries, affiliates and franchisees (collectively, “Newk’s” or “we” or “us”).
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how claims you and Newk’s have against each other are resolved, including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with the Arbitration section below.
Links to Specific Topics
Certain services offered by through the Newk’s Online Services, such as mobile apps, loyalty programs, sweepstakes and other similar offers, will be subject to additional terms. Those terms will be presented in conjunction with the particular program or offer and will be binding on those who participate in those programs or offers. These Terms will apply equally. Without limitation, the additional terms include the following:
The Newk’s Online Services are not intended for use by anyone under age 13. YOU MUST BE AT LEAST AGE 13 TO ACCESS AND USE THE NEWK’S ONLINE SERVICES. By accessing, using and/or submitting information to or through the Newk’s Online Services, you represent that you are at least age 13. Anyone between age thirteen (13) and eighteen (18) may only use the Newk’s Online Services under the supervision of his/her parent or a legal guardian. IF YOU ARE A PARENT/LEGAL GUARDIAN AND YOU PROVIDE YOUR CONSENT TO YOUR TEENAGER’S ACCESS TO AND USE OF THE NEWK’S ONLINE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS
USERS AND ACCOUNTS
To use certain Newk’s Online Services, such as the rewards program, you may need to create an account. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; (d) keep your account password private and not share it with others; and (d) notify Newk’s if you discover or suspect that your account has been hacked or its security breached.
You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Newk’s Online Services. We do not guarantee that the Newk’s Online Services are accessible on any particular equipment or device or with any particular software or service plan.
We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Newk’s Online Services or any component of them and to block or prevent future access to and use of the Newk’s Online Services and to delete your account and any related information. Any obligation or liability incurred prior to our termination of your access to the Newk’s Online Services will survive such termination.
PERSONAL USE ONLY
The Newk’s Online Services are owned by Newk’s and licensed to you for your personal, non-commercial use only. Except as expressly provided in these Terms, you may not copy, distribute, publish, transmit, modify, transmit, publicly display or perform, create derivative works of or otherwise exploit any part of the Newk’s Online Services. You may not save or archive a significant portion of the material appearing in or on the Newk’s Online Services. All rights not expressly granted herein are reserved by Newk’s.
RESPONSIBLE USE OF THE NEWK’S ONLINE SERVICES
You may use the Newk’s Online Services for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Newk’s Online Services: (a) for any purpose that is unlawful or prohibited by these Terms; (b) to cause harm or damage to any person or entity; (c) to interfere with the proper operation of the Newk’s Online Services; or (d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by Newk’s in its sole discretion). YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS NEWK’S AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF ANY NEWK’S ONLINE SERVICES IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.
PROVISION OR SUSPENSION/WITHDRAWAL OF THE NEWK’S ONLINE SERVICES
You understand and agree that: (a) the Newk’s Online Services may change from time to time without notice to you and any new feature that augments, enhances or modifies the current Newk’s Online Services is subject to these Terms; (b) we may decline to provide access to the Newk’s Online Services or stop (permanently or temporarily) providing the Newk’s Online Services (or any feature, program or content within the Newk’s Online Services) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to your account, you may be prevented from accessing the Newk’s Online Services, your account details, or any files or other content which are contained in your account.
If you use a mobile device to access the Newk’s Online Services, you agree to and acknowledge the following additional terms and conditions (“Mobile Terms”): (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Newk’s Online Services; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use. By accessing or using any Newk’s Online Services via a mobile device, you agree to these Terms and to any applicable terms of a mobile app you may use.
UNITED STATES ONLY
The Newk’s Online Services are intended for use only in the 50 United States, plus D.C. You are responsible for compliance with any local laws if you access or use the Newk’s Online Services anywhere else. All prices displayed on the Newk’s Online Services are quoted in U.S. Dollars and are valid and effective only in the United States.
INDEMNITY, DISCLAIMERS AND LIMITS ON LIABILITY
You agree to indemnify, defend, and hold harmless Newk’s Franchise Company, LLC, its affiliated companies and franchisees (collectively “Newk’s”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (collectively, “Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms. Newk’s reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if Newk’s assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Newk’s Online Services, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT the Newk’s Online Services, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE NEWK’S ONLINE SERVICES. THE NEWK’S ONLINE SERVICES ARE PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.
THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. THE COVERED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OF THE NEWK’S ONLINE SERVICES.
Limitations on Liability
THE COVERED ENTITIES SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, STATUTORY DAMAGES OR PENALTIES, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION ARISING IN CONNECTION WITH, OUT OF, OR AS A RESULT OF (I) THESE TERMS OR THE NEWK’S ONLINE SERVICES, AND (II) ANY ACTS OR OMISSIONS OF ANY OF THE COVERED ENTITIES IN CONNECTION WITH THESE TERMS OR THE NEWK’S SERVICES.
In the event that you have a dispute with one or more other users, you hereby release the Covered Entities from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. 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.”
Exceptions to Disclaimers and Exclusions of Damages
If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you.
Timing of Claims
You must bring any claim you have against Newk’s relating to these terms or the Newk’s Online Services within two (2) years from the date of accrual of the applicable claim.
LEGAL DISPUTES AND ARBITRATION AGREEMENT
Initial Dispute Resolution
We are available by email at [email protected] to address any concerns you may have regarding your use of the Newk’s Online Services. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
Terms and Binding Arbitration Agreement
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to the paragraph above, then either party may initiate binding arbitration. All claims arising out of or relating to the parties’ relationship with each other and/or your use of the Newk’s Online Services shall be finally settled by binding arbitration administered by the American Arbitration Association on a non-confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of the Texas Arbitration Act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 800-778-7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Newk’s will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and Newk’s will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $25,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception – Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out to the following address Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, Mississippi 29216, Attention: Legal Department or by fax at 866-704-9128. The notice must be sent within thirty (30) days of registering to use the Newk’s Online Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those provisions. If you opt-out of these arbitration provisions, Newk’s also will not be bound by them.
Exclusive Venue for Litigation
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Jackson, Mississippi (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Jackson, Mississippi for any litigation other than small claims court actions. You hereby irrevocably consent to personal jurisdiction in Jackson, Mississippi for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Jackson, Mississippi over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Newk’s Online Services, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Newk’s Online Services.
COPYRIGHT AND TRADEMARK
Unless otherwise noted, all materials published in or through the Newk’s Online Services are protected as the copyrights, trade dress, trademarks and/or other intellectual property of Newk’s or its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Newk’s Online Services. All rights not expressly granted are reserved
Newk’s is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please email us at [email protected]. We may, in our sole discretion, limit, suspend, or terminate and user’s access or account, delay or remove content, and take technical and legal steps to keep users from using the Newk’s Online Services, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).
Digital Millennium Copyright Act (“DMCA”) Policy
Newk’s will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to:
Newk’s Franchise Company, LLC
2680 Crane Ridge Drive
Jackson, Mississippi 29216
Attention: Legal Department
Any such notice should include the following:
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information: your physical or electronic signature; identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; a statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Mississippi, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person. If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
Links provided within the Newk’s Online Services may allow you to connect to other websites and services that are not under our control. We do not endorse and are not responsible for the content of such websites and/or services. You access such websites and use such services at your own risk.
ERRORS AND INACCURACIES
The Newk’s Online Services may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Newk’s Online Services is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid. We cannot guarantee that your computer’s display of color or other product features is accurate.
Newk’s does not seek or accept unsolicited ideas. By submitting any material to us through any of the Newk’s Online Services, you expressly grant to Newk’s and its affiliates a royalty-free, non-exclusive, fully transferable, assignable and sub-licensable right and license to use, reproduce, modify, display, transmit, adapt, publish, translate, create derivative works from and distribute such material, throughout the world and in perpetuity, in all media now known or hereafter devised and for all lawful business purposes of Newk’s and its affiliates (including, without limitation, advertising, promotional and marketing purposes). You also acknowledge and agree that if and to the extent the material submitted by you identifies you by name, likeness, voice or otherwise (“your identification”), the foregoing license granted by you will automatically be deemed to cover and extend to our use of your identification in connection with our use of the material submitted by you. In addition, you warrant that all so-called “moral rights” have been waived.
Certain materials on the Newk’s Online Services may describe certain aspects of the Newk’s franchise system. They do not constitute an offering for the sale of a franchise. Such offering is only commenced by our delivery of the Franchise Disclosure Document to you in compliance with the Federal Trade Commission Rule on Franchising and various state laws regulating the sale of franchise opportunities.
We will notify you of changes to these Terms by posting the amended terms on the Newk’s website at least thirty (30) days before the effective date of the changes. If you have provided us with your email address, we will also notify you of material changes to these Terms by sending an email at least thirty (30) days before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the Newk’s Online Services, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at [email protected] and you will not be bound by the new terms. Otherwise, the new terms will take effect after thirty (30) days. Newk’s employees do not have the right to modify these Terms orally or otherwise. If any employee of Newk’s offers to modify the provisions of these Terms except using the process described above, he or she is not acting as an agent for Newk’s or speaking on our behalf.
These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of Mississippi, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and Newk’s relating to use of any aspect of the Newk’s Online Services.
These Terms and the terms and conditions incorporated herein by reference are the entire agreement between you and Newk’s.
Except as provided in the Arbitration provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.
No Third Party Beneficiaries
These Terms are between you and Newk’s. There are no third party beneficiaries.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
If you have questions regarding any of these Terms, you can write to us care of Newk’s Customer Service, 2680 Crane Ridge Drive, Jackson, Mississippi 39126.
© 2016 Newk’s Franchise Company, LLC.
The Newk’s name, design, logos and related marks are registered trademarks of Newk’s Franchise Company, LLC or its affiliates. All rights reserved.