Terms of use - Newks

TERMS OF USE AGREEMENT

PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND NEWK’S FRANCHISE COMPANY, LLC AND ITS AFFILIATED ENTITIES (“NEWK’S,” “WE,” OR “US”).

SECTION 17 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 17 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.

By accessing or using any Newk’s website or digital platform, including, without limitation, any content or services accessed through an electronic kiosk at Newk’s Eatery restaurant locations, with an authorized link to this Agreement (“Site”) or downloading, installing or using any Newk’s mobile application with an authorized link to this Agreement (“Application”), accessing or using any content, information, services, features or resources available or enabled via the Site or Application (collectively with the Site and Application, the “Services”), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time through the Site and Application (2) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. References to “you,” “User” and “Users” in this Agreement refer to all individuals and other persons who access or use the Services, including, without limitation, any companies, organizations or other legal entities that register accounts or otherwise access or use the Services through their respective employees, agents or representatives. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

Subject to Section 17.9 of this Agreement, Newk’s reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

1. 1. Registration

   When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data “) and to promptly update the Registration Data thereafter as necessary to keep it current. You consent to Newk’s use of such Registration Data in accordance with our Privacy Policy at https://newks.com/privacy. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Newk’s immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account at any given time. Newk’s reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Newk’s. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE USING YOUR ACCOUNT WHETHER OR NOT SUCH ACCESS TO AND USE OF YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.

2. 2. Orders

   Prices are subject to change without notice. Although we strive to accept all valid orders, Newk’s reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the food, beverage, or merchandise ordered (collectively “Product”) or receive insufficient or erroneous billing, payment, and/or delivery information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. If any Product is discontinued or otherwise becomes unavailable, Newk’s reserves the right to cancel your order and provide you a refund for the amount paid for the Product.

3. 3. Fees and Purchase Terms

   • 3.1 Payment. You agree to pay for all orders made from your Account in accordance with the prices and billing terms in effect at the time an order is made from your Account, regardless of whether your actually receive the products. You also agree to pay all applicable taxes. To make an order from an Account through the Services, you must provide valid payment information (e.g. credit card, debit card, and/or Newk’s gift card) through the Site or App. Payments are processed using the Olo platform and our payment processors. By making an order through the Services, you also agree (i) to be bound by Olo’s terms of service (https://www.olo.com/terms-of-use), (ii) the payment method(s) you provide will immediately be charged for all fees and taxes applicable to your order, (iii) payment information and instructions required to complete the payment transactions may be shared between Newk’s, Olo, any of our payment processors, and their third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iv) no additional notice or consent is required for the foregoing authorizations. You agree to immediately update your Account in the event of any change in your payment information. Newk’s reserves the right at any time to change its prices and billing methods.
   • 3.2 Refunds. Except as approved by Newk’s in its sole discretion, all fees paid are non-refundable.
   • 3.3 Discounts and Promotions.
     • 3.3.1 We may, in our sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through official Newk’s communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. Unless otherwise stated at the time of issuance, all Promo Codes expire 90 days after issuance.
     • 3.3.2 Special terms may apply to some promotions that may be offered on the Services. Such special terms (e.g. official contest rules) may be posted in connection with the applicable promotion. Any such special terms are in addition to these Terms and, in the event of a conflict, any such terms shall prevail over these Terms.
   • 3.4 Gift Cards. In the case of physical cards, the terms and conditions of Newk’s gift cards are provided on the back of the card, and explained more fully at https://newks.securetree.com/. Newk’s gift cards with balances of under $10.00 are redeemable for cash in the States of California, Texas, Massachusetts and Colorado. To make a request to redeem a gift card with a balance of under $10.00 in any of California, Texas, Massachusetts or Colorado, please visit us at any Newk’s store in such state or email [email protected].

4. 4. Rewards Program

   If you register for an account via the App or otherwise elect to participate in any Newk’s reward or loyalty program, you agree to the terms of the such If you do not agree to the terms of the such program, you may not participate in the program.

   Newk's Rewards SMS Text Program (NEWKS)

   Data obtained through the short code program will not be shared with any third-parties for their marketing reasons/purposes. Messaging frequency may vary. To Opt-out of marketing communication once enrolled, text STOP to NEWKS and you will be unsubscribed from receiving any future alerts from Newk's Rewards.

   If you choose to opt-in to SMS Communication from NEWKS - you will receive promotional offers, news and other important information from the NEWKS number, exclusively via text message. Messages and data rates may apply.

   For help - text HELP or contact us directly at [email protected] for assistance.

   Carriers are not liable for delayed or undelivered messages.

   For privacy policy, please visit our Privacy Policy pages.

5. 5. User Content

   • 5.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“ User Content”). Newk’s has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Newk’s reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Newk’s shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
   • 5.2 Ownership of Your Content. Newk’s does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Newk’s the license set forth in Section 5.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
   • 5.3 License to Your Content. Subject to any applicable Account settings, you grant Newk’s a right to copy, use, and display Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Services. Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
   • 5.4 Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Newk’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Newk’s.

6. 6. Feedback

   You agree that your submission of any ideas, suggestions, documents, and/or proposals to Newk’s (“Feedback”) is at your own risk and that Newk’s has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Newk’s a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.

7. 7. Communications; Calls and Text Messages

   • 7.1 Consent to be Contacted by Newk’s. We may offer communications via calls, SMS text messages or similar technology (including via automatic telephone dialing equipment) subject to our receipt of any consents from you required by applicable law. These communications may be sent or initiated by Newk’s or any of its service providers, such as when we send you text messages to confirm, process and notify you about the status and pickup location of an order you place with us, provide you with a receipt, or for any customer service, account-related or marketing purpose. Message and data rates may apply. Message frequency may vary according to how you interact with our platform. To stop receiving text messages from a short code operated by Newk’s, reply STOP to any message you receive from such short code. You agree we may send you a message to confirm your receipt of your STOP request. You can also opt-out of Newk’s text messages by emailing us your request and mobile telephone number to [email protected]
     • You acknowledge and agree that our platform may not recognize and respond to texted unsubscribe requests that do not include the STOP keyword and agree that Newk’s will have no liability for failing to honor such requests. For assistance with any text message issues, reply HELP to any text message you receive. You can also contact our customer assistance team by emailing us at [email protected] Not all mobile devices may be supported and text messaging may not be available in all areas. Newk’s and the mobile carriers supported on our platform are not liable for delayed or undelivered text messages. You promise that all information you provide through the Services (including but not limited to your telephone number(s) and other contact information) will be accurate, current and truthful to the best of your knowledge. You consent to Newk’s use of such information in accordance with our Privacy Policy at https://newks.com/privacy.
   • 7.2 Consent to Call Recording and Monitoring. You acknowledge and agree that any telephone calls between you and Newk’s representatives may be recorded and/or monitored for training, quality assurance or other business purposes.

8. 8. Ownership of and License to Use Services

   • 8.1 Use of the Services. Except with respect to User Content, Newk’s and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Newk’s grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Newk’s, its suppliers, and its service providers reserve all rights not granted in this Agreement.
   • 8.2 Trademarks. Newk’s name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Newk’s and may not be used without written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

9. 9. Restrictions On The Use Of The Services

   The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Newk’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Newk’s reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Newk’s pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Newk’s under law, equity, statute, or otherwise.

10. 10. Third-Party Services

    • 10.1 Third-Party Websites, Applications & Ads. The Services may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Newk’s does not control and is not responsible for Third-Party Links. Newk’s provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
    • 10.2 App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Newk’s and not with the App Store. Newk’s, not the App Store, is solely responsible for Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
    • 10.3 Additional Terms for Apple Apps. With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
    • 10.3.1. You acknowledge and agree that (i) this Agreement is concluded between you and Newk’s only, and not Apple, and (ii) Newk’s, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
    • 10.3.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
    • 10.3.3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Newk’s and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Newk’s.
    • 10.3.4. You and Newk’s acknowledge that, as between Newk’s and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
    • 10.3.5. You and Newk’s acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Newk’s and Apple, Newk’s, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
    • 10.3.6. You and Newk’s acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
    • 10.3.7. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

11. 11. Indemnification

    You agree to indemnify and hold Newk’s, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Newk’s Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Newk’s reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Newk’s in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to Services.

12. 12. Disclaimer of Warranties and Conditions

    12.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE NEWK’S PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEWK’S PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.

    12.2. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

13. 13. Limitation of Liability

    • 13.1. Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NEWK’S PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT NEWK’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • 13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE NEWK’S PARTIES ARE LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO NEWK’S BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY. THE LAWS OF SOME OTHER STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS SET FORTH IN THIS SUBSECTION MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
    • 13.3 User Content and Settings. The Newk’s Parties assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any content, User communications, or personalization settings.
    • 13.4 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Newk’s and you.

14. 14. Procedure for Making Claims of Copyright Infringement

    If you believe content posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Legal Department.

15. 15. Termination

    At its sole discretion, Newk’s may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Newk’s reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Newk’s for any purchases will remain due.

16. 16. International Users

    Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Newk’s intends to announce or promote the availability of such services or content in your country. Services are controlled and offered by Newk’s from its facilities in the United States of America. Newk’s makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.

17. 17. Dispute Resolution

    Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Newk’s and limits the manner in which you can seek relief from us.

    • 17.1. Applicability of Arbitration Agreement. You agree that any dispute between you and us (or other Newk’s Parties) relating in any way to the Services or this Agreement, or arising under the Telephone Consumer Protection Act of 1991, 47 U.S.C. section 227, or other state or federal law or regulation governing calls or text messages, will be resolved by binding arbitration, rather than in court, except that (1) you and the Newk’s Parties may assert claims in small claims court if the claims qualify; and (2) you or the Newk’s Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
    • 17.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Legal Department. The arbitration will be conducted by American Arbitration Association (“AAA”), an established alternative dispute resolution provider. 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. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    • 17.3. Authority of Arbitrator. Without limiting the scope of Section 17.1, the arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the Newk’s Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
    • 17.4. Waiver of Jury Trial. YOU AND the Newk’s parties HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Newk’s Parties are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
    • 17.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS BY OR AGAINST ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF OR AGAINST ANY OTHER USER OR PERSON. If a decision is issued stating that applicable law precludes enforcement of any of this Section 17.5’s limitations as to a given claim for relief, then the applicable claim, and only that applicable claim, must be severed from the arbitration and brought into the state or federal courts located in Mississippi in accordance with Section 18.4. All other claims shall be arbitrated.
    • 17.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Legal Department or by fax at 866-704-9128, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us or other Newk’s Parties.
    • 17.7. Severability. Except as provided in Section 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
    • 17.8. Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Newk’s.
    • 17.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Newk’s makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Newk’s at the following address: Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Legal Department

18. 18. Franchise Prospects

    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.

19. 19. General Provisions

    • 19.1. Electronic Communications. The communications between you and Newk’s use electronic means, whether you visit Services or send Newk’s e-mails, or whether Newk’s posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Newk’s in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Newk’s provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.
    • 19.2. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Newk’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    • 19.3. Force Majeure. Newk’s shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
    • 19.4. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Newk’s agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in Madison County, Mississippi or federal courts located in the Southern District of Mississippi, Northern Division.
    • 19.5. Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Mississippi, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
    • 19.6. Changes. 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]newks.com 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.
    • 19.7. Notice. Where Newk’s requires that you provide an e-mail address, you are responsible for providing Newk’s with your most current e-mail address. In the event that the last e-mail address you provided to Newk’s is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Newk’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Newk’s at the following address: Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Marketing Coordinator. Such notice shall be deemed given when received by Newk’s by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    • 19.8. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: Newk’s Franchise Company, LLC, 2680 Crane Ridge Drive, Jackson, MS 39216, Attention: Marketing Coordinator, e-mail [email protected] or call (601)-982-1160. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
    • 19.9. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • 19.10. Severability. Subject to Section 17.7, if any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    • 19.11. Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
    • 19.12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    • 19.13. Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

20. 20. Newk's Rewards Programs Terms

    Please read this Newk’s Rewards Program Terms (this “Agreement”) carefully. The terms of this Agreement may have changed since you last read them. By (i) clicking a button or taking another action to signify your acceptance of this Agreement, (ii) registering for an account using the App, (iii) agreeing to the Newk’s Terms of Use Agreement, or (iv) participating in Newk’s Rewards Program, you agree to the terms and conditions of this Agreement. If you do not agree to be bound by this Agreement, you may not participate in Newk’s Rewards Program.
    

    These Newk’s Rewards Program Terms should be read together with the Newk’s Terms of Use Agreement (https://newks.com/terms-of-use) and is incorporated herein. To the extent there is a conflict between the Newk’s Rewards Program Terms and the Newk’s Terms of Use Agreement, the Newk’s Terms of Use Agreement shall govern.

    20.1. MEMBERSHIP

    The Newk’s Rewards Program (the “Program”) is offered by Newk’s Franchise Company, LLC and its affiliated entities and franchisees (“Newk’s,” “we,” “us,” or “our”) to eligible individuals who enroll in the Program (“Members,” “you,” or “your”). To earn Points (as defined below) and receive Benefits (as defined below), you must be a Member.

    Individuals who are 13 years or older and residents of the 50 United States and the District of Columbia may enroll to become Members. If you are a minor in your state of residence you must have your parent or legal guardian’s permission before becoming a Member. For the avoidance of doubt, only natural persons transacting in their personal capacity and for their own account are eligible to participate in the Program; third party aggregators, groups, organizations, and business entities are not eligible to become Members or earn Points or Benefits.

    If you would like to become a new Member, you must enroll in the Program by (a) registering for the Program by submitting the requested information, and (b) accepting this Agreement pursuant to one of the methods set forth in the introductory paragraph above. Newk’s reserves the right to delay enrollment until your membership eligibility is confirmed.

    Your membership is non-transferable and you may only have one (1) membership at a time. If we discover that you have multiple memberships in the Program, you will be deemed to be in violation of this Agreement and we reserve the right to terminate all such accounts.

    20.2. QUALIFYING ORDERS AND SPEND

    Once enrolled in the Program, if you place an order for food and/or beverages from a Newk’s Eatery restaurant with your account details (“Qualifying Order”), you will earn Points based on the U.S. dollar amount that you pay for such order at Newk’s, excluding tax, tips, alcohol, discounts, delivery fees, or other promotional credit or forms of Newk’s provided compensation (“Qualifying Spend”). Newk’s reserves the right to exclude the purchases of merchandise, alcohol and any other non-food or beverage products or services offered by Newk’s from Qualifying Spend.

    Orders made directly through third party food delivery platforms (e.g. Doordash, GrubHub, UberEats, Postmates, etc.) are not Qualifying Orders and will not generate Qualifying Spend or count towards Points.

    Orders placed by or on behalf of third party aggregators, groups, organizations, and business entities will not count towards Points. Newk’s reserves the right to delay, suspend, recalculate, reduce or revoke any Qualifying Spend or Points that Newk’s suspects are connected with such orders.

    All purchases made through a Member’s account will be treated as activity of the Member, regardless of any other name listed on the order (e.g. different name on the method of payment, delivery recipient, etc.). Your Qualifying Spend is non-transferable and cannot be combined with the Qualifying Spend of other Members. Purchases made before becoming a Member will not be counted as Qualifying Spend.

    Qualifying Orders paid for by Members using a gift cards will not be eligible for Qualifying Spend.

    20.3. POINTS

    For every U.S. Dollar spent on a Qualifying Order you will receive ten (10) Points. Qualifying Spend will not be rounded up. If your Qualifying Spend was $13.98 you will receive 130 Points.

    Members can use Points to purchase Newk’s products (“Rewards”). Newk’s will display the number of Points that must be redeemed for each Reward. The number of Points that must be redeemed for a particular Reward can change at anytime in Newk’s sole discretion. Newk’s may add or remove specific products as Rewards at anytime in Newk’s sole discretion.

    A Member may only redeem one Reward per transaction. Use of Points and receiving rewards may not be stacked (used with any other coupon or offer).

    20.4. EXPIRATION OR POINTS

    Members must make a Qualifying Order or redeem Points once every 12 months in order to retain their Points and Benefits. If your account has no qualifying activity in any 12-month period, all Points and Benefits in your account will expire. Qualifying activity (making a Qualifying Order or redeem Points) extends the expiration date of all unexpired Points in your account for 12 months from the date of the qualifying activity.

    20.5. BENEFITS

    As a Member you will receive certain Benefits. Benefits may change from time to time without advance notice. Each Benefit may have its own expiration. Benefits may include such items as:

    • A free drink just for signing up (14-day expiration period)
    • Exclusive offers and deals
    • Be the first to know: exclusive news and first look previews for new menu items
    • Celebrate your birthday with a FREE slice of cake (30-day expiration period)
    • Double points promotions to help you get to your Reward even faster
    • A free slice of cake for referring your friends to Rewards (14-day expiration period)
    • Earn points and redeem Rewards in a Newk’s Eatery restaurant or online anytime
    • Easy access to your points and Rewards by downloading the Newk's app or giving your phone number in a Newk’s Eatery restaurant

    Expiration periods listed above may change without notice.

    20.6. ADDITIONAL TERMS

    Points and certain Benefits can only be redeemed while logged into your Newk’s account. Rewards and Benefit credits cannot be redeemed through any third party platforms. Points and Benefit credits may only be used to pay for Newk’s food and/or beverage items and cannot be used to pay for merchandise, tips, gift certificates, or delivery fees.

    If you elect not to apply Points and Benefit credits in a particular transaction, no Points or Benefit credits will be used in your order and they will remain in your account until they are used or they expire. Newk’s reserves the right to restrict the use of Points and Benefit credits in combination with other discounts and promotions.

    The Points and Benefit credit amount redeemed may not exceed the amount of the order purchase price. If a full Point credit is not used when redeemed, the remaining balance will be available for use in a future order, subject to the expiration periods described herein. Once fully redeemed, the Points or Benefit credit will be recorded as a redeemed Point or Benefit credit.

    Points and Benefit credits cannot be applied to prior purchases. Redeemed Points and Benefit credits are non-refundable and under no circumstances are Points and Benefit credits redeemable for cash or cash-equivalents.

    Qualifying Spend, Points and Benefits are automatically tracked and allocated to each Member’s account by Newk’s or our service providers and our decisions and records regarding such calculations and benefits will be final and binding in all respects. Qualifying Spend, Points, and Benefits are subject to verification. Any Qualifying Spend, Points, Benefit that cannot be verified to the satisfaction of Newk’s is subject to adjustment, cancellation or disqualification at our sole discretion.

    Newk’s will not be liable for the failure of any Qualifying Spend, Points, or Benefits to be accurately credited or awarded for any reason, including, but not limited to, (i) any technical malfunction or other problems relating to any network, computer system, servers, access providers, computer equipment or software, (ii) your failure to timely claim any Points or credit prior to the end of any expiration periods described herein and/or (iii) any combination of the foregoing. Newk’s does not issue retroactive Qualifying Spend for any reason (e.g. if you forget to login to your account, you will not earn Qualifying Spend for your order).

    Points and Benefits are promotional in nature and have no cash value and are not exchangeable for cash or any cash equivalent under any circumstances. Points and Benefits have no value outside of this Program. Points are not redeemable for cash.

    Points and Benefits cannot be assigned, exchanged, sold, traded, bartered, purchased, given by gift or otherwise transferred. Any Points and Benefits so acquired are void. Points cannot be redeemed for gift cards, cash, or gift certificates. The accumulation of Points or Benefits does not entitle the Member to any vested rights, and Newk’s does not guarantee in any way the continued availability of any Points or Benefit.

    Please allow up to three (3) business days for Qualifying Spend, Points, and Benefits to update in your account. If more than three (3) business days have passed, please contact us.

    Newk’s reserves the right, in our sole and absolute discretion, to (i) suspend or terminate a Member’s account at any time for any reason or (ii) invalidate any Qualifying Spend, Points and Benefit we deem to have been awarded in error, or as the result of the use of an account to make orders by or on behalf of a third party aggregator, group, organization, or business entity or any actual or suspected fraudulent or dishonest activity (including without limitation, the use of any system, macro, script, or bot to manipulate the Program). Reasons for account suspension or termination or benefit invalidation may include, without limitation, disorderly personal conduct at a Newk’s event which actually or potentially harms any Newk’s or any third party, violations of law, or any other activity not in keeping with the letter and/or spirit of this Agreement, as interpreted by us in our sole and absolute discretion. If your account has been suspended or terminated, you forfeit any accumulated Points and Benefit and are prohibited from registering for a new account without the prior written permission of Newk’s.

    Newk’s is not liable for Points or Benefits sent to suspended or terminated accounts.

    20.7. E-MAIL AND SMS COMMUNICATIONS

    By participating in the Program and providing your email address, you agree that Newk’s will periodically send you administrative e-mails, free newsletters, and e-mails. You may opt-out of marketing-related emails by following the unsubscribe instructions provided at the bottom of any e-mail you receive from Newk’s or by contacting Newk’s directly at [email protected]. Despite opting out of marketing-related emails, Newk’s may continue to send you service-related and other non-marketing communications, including notices of any updates to this Agreement, the Newk’s Terms of Use Agreement or Privacy Policy.

    By participating in the Program, Newk’s may offer communications via SMS texts or similar technology (including via automatic telephone dialing equipment, if we received the appropriate consents from you in accordance with applicable law) sent by Newk’s or any of its service providers, such as when Newk’s sends you text messages to confirm, process and notify you about the status and pickup location of an order you place with us, or for any customer service, account-related or marketing purpose. To stop receiving text messages from a short code operated by Newk’s, reply STOP to any message you receive from such short code. Note that we may send you a message to confirm receipt of your STOP request. Message and data rates may apply for this service. You can also opt-out of Newk’s marketing texts by emailing us your request and mobile telephone number to [email protected]

    Data obtained through the short code program will not be shared with any third parties for their marketing reasons/purposes.

    20.8. PROGRAM TERMINATION/MODIFICATION

    Newk’s may terminate the Program at any time, with or without notice, which may result in loss of accumulated Points, Rewards, Benefits and other privileges associated with the Program. Newk’s reserves the right to modify any of the rules, terms, conditions, and benefits of the Program at its sole discretion, with or without notice. Interpretation of this Agreement shall be at the sole discretion of Newk’s, whose decision will be final.

    20.9. CHANGE TO YOUR ACCOUNT INFORMATION

    You must advise Newk’s of any change in your name or the address, phone number and/or email address associated with your account. Name, address, email and phone number changes can be made by email [email protected] Newk’s is not liable for information sent to outdated contact information.

    20.10. MISCELLANEOUS

    Any disputes related to this Agreement and the subject matter herein will be resolved pursuant to the terms of Newk’s Terms of Use Agreement. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You may not assign or transfer this Agreement, or its rights or obligations herein, in whole or in part without the written consent of Newk’s. Newk’s may freely assign or transfer this Agreement. Any assignment or transfer in violation of the foregoing is void. This Agreement is the final, complete and exclusive agreement between you and Newk’s with respect to the subject matters hereof and supersedes and merges any discussions between you and Newk’s with respect to such subject matters.
    

Last Updated: November 17th, 2021