TERMS AND CONDITIONS

Effective Date: These Terms were last updated on June 5, 2020.

 

  1. Contractual Relationship

We at Burbowl® Franchise Holdings LLC (“Burbowl®” “we” “us” or “our”) are pleased to welcome you to our family and are excited that you wish to use our Services, as more fully described below.  Like all families, we have rules, so please read these Terms and Conditions (the “Terms”) before using or accessing our applications, websites, content, products, and other related services (the “Services”)

PLEASE READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BURBOWL®. THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS.  YOUR LEGAL RIGHTS ARE THUS AFFECTED – IT IS INCUMBENT UPON YOU TO READ THEM AND THE USE OF OUR SERVICES CONSTITUTES YOUR CONSENT TO THEM.

By accessing or using the Services, you confirm your agreement to be bound by these Terms.  If you do not agree to these Terms, you may not access or use the Services.  There is no obligation for you to use the Service nor are we obliged to offer you the Services, and even if we do, we do not guarantee that the Services will function successfully (as with all technology, it is prone to errors, although we will in good faith endeavor to make your experience as smooth and gratifying as possible).  These Terms expressly supersede prior agreements or arrangements with you. Burbowl® may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason in its absolute and sole discretion.

Burbowl® may amend or modify the Terms from time to time without notice. Amendments will be effective upon the posting of such updated Terms at this location or elsewhere in the application or on the website.  Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.

Our collection and use of your personal information in connection with the Services is described in our Privacy Policy located at https://bur-bowl.com/privacy-policy/, which is incorporated herein by reference and made a part of this document.

 

  1. The Services

The application is an order and payment service for food, drinks and other services. Orders through our website and application can be placed via the application downloaded to your mobile phone via a web application on our website, a third party website such as Google Play or the App Store, or through one of our self-order kiosks located at the franchisees and participating restaurants.  With each order you may be able collect points that you can redeem for rewards as described in Section 5 below. Burbowl® may also send you coupons, which we generate in the back-end system and which we then send to you, for example, as push notifications, e-mail, message, or otherwise.  Data rates may apply and your use of the Services constitutes your consent to any charges.  You can redeem these coupons on the customer application for mobile device users, on the web application on our website, or via an application on a self-order kiosk. Burbowl® may communicate with you from within the application and to provide you with relevant information regarding and as part of our Services.

 

2.1       Role of Burbowl®.

Burbowl® is the Franchisor and as such is also the platform operator of the Services, although as detailed herein, the benefit of these Services inures to you and each franchisee and participating restaurant, not Burbowl®.  To that effect, the franchisees and participating restaurants operate the application and the Services independently of the Franchisor.  Each of the participating restaurants and franchisees can see the order information you send to them, which includes your personal information, but not Burbowl®.  MENU is our service provider and technology supplier, and as such provides the application platform that enables us to provide the Services to you; consequently, MENU will also have access to your personal data.

 

2.2       Independence of Franchisees and Participating Restaurants.

Note, Burbowl® is not a restaurant and accordingly does not offer food, drinks, or otherwise through its Services – that is done through the franchisees and participating restaurants.  Burbowl® is just the Franchisor and platform operator for the Services.  To that effect, please be advised that any agreement between you and the franchisees or participating restaurants is separate from these Terms and Privacy Policy, and that Burbowl® is not a party, has no obligations therein, and is not bound by any contract with you outside of these Terms. Furthermore, you acknowledge and understand that the franchisees and participating restaurants are not our agents, despite their licensing of our intellectual property. Your continued use of the Services is an acknowledgement and acceptance that neither Burbowl® Franchise Holding, LLC, Burbowl®, nor any of its past, present, or future affiliates or subsidiaries and their respective officers, directors, incorporators, members, partners, owners, agents, management, controlling parties, entities under common control, vendors, service providers, attorneys, employees, or representatives is a party to any agreement you may enter with an independently owned and Burbowl® location, which is a franchisee or participating restaurant.

 

2.3       Catering Services.

The catering services are provided directly by the franchisees and the participating restaurants in their own name and on their own account. The franchisees and participating restaurants do not act in any way for or on behalf of Burbowl®. In this regard, you enter into a separate contract with the participating restaurant or franchisee. Each franchisee or participating restaurant exclusively decides in their sole and absolute discretion to enter into a catering contract with you.

 

  1. Scope of Services.

As you read this Section 3 and these Terms in general, please be advised that the use of the Services and all orders placed, use of our kiosks, and payments are processed by independently owned and operated franchisees and participating restaurants, not Burbowl® Franchise Holdings, LLC.  To that effect, we do not receive any of your credit card information and does not make any charge on your credit card, but will use commercially reasonable encryption methods to treat your credit card information in a secure manner. The application and Services allows you to access certain location and menu specific restaurant information regarding each franchisee and participating restaurant so that you may order meals, drinks or other, and to pay for the same.  In certain franchises and participating restaurants, the application may give you the option of paying for orders that you have placed with the service staff.  In addition, certain participating restaurants can enable you to place and pay for orders for home deliveries using the application (except on the application at a self-ordering kiosk).

 

3.1       Placing an Order.

Your order triggers a process wherein the franchisee and participating restaurants through the Services receive your order information, which includes personal data as detailed in our Privacy Policy; Burbowl® does not receive this information.  This information is thus sent to our provider MENU who processes that information in order to complete process.  This process varies slightly between orders placed through our mobile application and orders placed through our self-service kiosks.  You hereby authorize each participating restaurant and franchisee to disclose and process your orders, personal data and location data to MENU so that the Services may be properly provided to you.

 

3.2       Placing an Order through Application.

When your order is ready to be picked up at the counter, you will be informed either via a push message or notification (for orders placed via the mobile application) or via SMS message (for orders placed via the web application). If the restaurant you are visiting works with guest localization, your table number or your location in the participating restaurant will also be determined by means of table number entry (on the mobile and web application), utilizing transmitters or antennas (kiosks). In order to receive push messages or notifications, you must have this option activated and enabled on your smartphone.  Likewise, in order to determine your location via transmitters or antennas, you must have Bluetooth and location services enabled on your cellular device, and ensure that the appropriate permissions are enabled.

 

3.3       Placing an Order through Kiosk.

For orders that you place through the self-order kiosk, a puck may show you when your order is ready for collection at the counter or your order number is displayed on a screen. Your location can also be determined using a puck, which may be distributed to you at the self-order kiosk or at the counter, or, alternatively, you may need to enter a number into the screen.

 

  1. How to use our Services.

4.1       User Accounts.

In order for you to be able to use the Services or the mobile application, and in particular to place an order on the application, you must first log in and create a user account. To create a user account, you must first download the application and then proceed to registration by following the instructions in the application. When registering, you provide Burbowl®, as platform operator and Franchisor, MENU, as service provider and technology supplier, and if applicable, the franchisee and participating restaurants, your personal data required in order to complete registration.  Please see our Privacy Policy regarding the information collected during this process.  After successfully registering, you will receive a personal user account which can be accessed with a password of your choice.  You are responsible for all activities on your user account and you are obliged to keep your username and password safe and confidential at all times.

 

4.2       Restrictions on User Accounts.

User accounts are only available to clearly identified and designated natural persons. The personal data you enter into in order to create your user account is stored in your account.   However, information stored about you will be sent to us and MENU so that you and us can better understand and manage your rights and obligations as a user of our Services.  Please see our Privacy Policy regarding the information collected during this process.  A user account is not transferable and you are not allowed to have more than one user account.

 

4.3       Accuracy of Information.

You guarantee that the information you provide to us is correct, complete and current at all times. In particular, you must truthfully provide your own name and, if necessary, a billing address for billing purposes.  Please use the update functions in your user account to update your profile with any changes to your information.  If your data is no longer correct, complete or current, including your billing information, communication with you and the carrying out of our services to you may prove impossible, i.e. significantly disrupted.  In such an event, please note that we may no longer be able to process your orders through our Services nor send you material updates.  Burbowl® reserves the right to cancel, suspend or discontinue our Services to you at any time, but especially for inaccurate, incomplete, or false personal or billing information. You also represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for our Services.

 

4.4       User Content.

Burbowl® may, at its sole discretion, allow you to submit, upload, publish, or upload text, audio, image content or other information from time to time, and to post comments and feedback regarding your experiences with us and our Services, meals, drinks, menu and related (the “User Content”).  Your User Content must comply with your obligations of conduct and responsibilities detailed herein in Section 7 and elsewhere in the Terms.  In any event, Burbowl® is under no obligation to check, monitor or remove user content, although Burbowl® will endeavor to do so if the same violates these Terms or the Privacy Policy, and may do so with or without notice to you.

 

4.5       Text Messages and Push Notifications.

By accessing our services, you hereby consent to receive text messages, push messages or notifications, e-mails, and other direct forms of communication, advertising, and marketing from Burbowl®.

 

  1. Points.

5.1       How to Collect Points.

You collect points by placing orders and, if applicable from time to time, by using the Services for other purposes. The number of points granted in each case is described in the application and elsewhere within Services, and in any relevant promotion or marketing materials.  To receive and get credit for points, you must be logged in to the application or other Services with your user account at the time of ordering or from other uses of the application and Services. There are no exceptions to this, and points will not be retroactively applied to your account in the event you were not logged in or not following the rules.

 

5.2       How to Redeem Points.

You can redeem your points for certain rewards or other benefits, both of which are subject to availability and based on a first-come-first-served basis.  In addition, the rewards and other benefits, if available, are subject to change without notice and in the absolute and sole discretion of the franchisees, and without notice.  The available rewards and benefits and the number of points required are announced in the application and Services.  Points redeemed at the time of redemption are counted first. Points are not redeemable as cash.

 

5.3       Crediting of Points.

Burbowl® will credit the points you have collected to a points account managed for you. The maximum possible point balance in the points account managed for you is currently 1,000. This maximum points balance cannot be exceeded and you cannot collect more points, regardless of how many orders you place. You can look up your current points balance and score at any time via the applications in your profile.  In addition, Burbowl® may send you messages about your current score.  Objections to the correctness or completeness of your points balance must be made in writing pursuant to Section 15.2, Notices, within one week of receiving the notification.  Failure to make a timely objection will be considered your approval of the balance. Notwithstanding anything to the contrary herein, Burbowl® reserves the right to unilaterally and without consent alter the maximum point balance allowed.

 

5.4       Cancellation of Points.

If the promotion through which you received points – not regular ordering – is cancelled, withdrawn, rolled-back, or for any other reason nullified, with or without cause, and in Burbowl’s sole discretion, Burbowl® reserves the right to cancel the corresponding credit of points to your account.

 

  1. Payment.

Burbowl® uses an external payment processor via MENU to connect your credit card to the Services and application. The processing of payments or credit, if applicable, in connection with your use of the applications and the service is subject to the terms and conditions and the privacy policy of the payment processor and your credit card issuer in addition to these Terms and our own Privacy Policy. Burbowl® is not responsible for any errors made by the payment processor or the credit card issuer. In connection with your use of the services, Burbowl® obtains certain transaction details, which it will only use in accordance with its Privacy Policy and as stated herein.

 

6.1       Payment Processing.

Although Burbowl® is the platform operator of the Services and is facilitating your order through the same, Payment received by you through our Services is settled in the name and for the account of each participating restaurant and Franchise, not Burbowl®.  However, Burbowl® as the platform administrator will charge you for meals, drinks or other goods displayed on behalf of the franchisees and participating restaurants through our Services.  Payment is processed via a payment processor that is connected to the Services. The payment processor will settle your payment with the corresponding franchisee and participating restaurant by acting as its authorized. The payments you make via the Services will be treated as if you made them directly to the franchisee or participating restaurant. All prices are payable immediately.

 

6.2       Prices.

The prices for the offerings of franchisees and participating restaurants (e.g. meals, drinks, etc.) can usually be found in the application, Services, or possible through our promotional materials and communication. These are determined and made available by the franchisees, not Burbowl®, and are changed and updated from time to time. It is your own responsibility to find out about the current prices of the corresponding offers from participating restaurants.

 

6.3       Agreement to Pay.

You agree that you will pay for all meals, drinks and other goods (including any taxes and late fees, if any, that are associated with your account) that you order from a Franchise or participating restaurant.  In order to consummate the transactions, the payment processor will then charge your credit card or other payment method that you previously specified upon registration with the Services.  You are responsible for the provision of a valid credit card or other payment method and the timely payment of all costs.  You also expressly give Burbowl® and the payment processor express permission to process payment.

 

  1. Your Conduct and Responsibilities.

You shall use the Services for lawful purposes only.  In addition, you commit yourself as follows: (i) you will only use the Services for private, non-commercial purposes and will not pass it on to third parties; (ii) you will not allow or allow third parties to use your user account; (iii) you will not assign, transfer or otherwise make your user account available to another person; (iv) you will not use a third party user account; (v) you will comply with all applicable laws when you use the Services, and not engage in any conduct that could give rise to civil or criminal liability; (vi) you will not use the service or applications to cause trouble, annoyance or inconvenience or to restrict or inhibit any other user from using and enjoying the Services; (vii) you will not interfere with the correct operation of the network; (viii) you will not try to damage the service or the applications in any way; (ix) you will keep the password for your user account or any identification that we provide to gain access to the service and the applications secure and confidential and keep it secret; (x) you will provide us with any proof of your identity that we deem appropriate; (xi) you will not use the service or the applications with a non-compatible or non-approved device; (xii) you shall not use our Services to engage in any unlawful, threatening, invasive, abusive or other like conduct; (xiii) you shall not use our Services to upload or transmit any obscene, vulgar, offensive, pornographic or otherwise objectionably or sexually explicit content; and (xiv) you will comply with all local, state, and federal law in your use of our Services.

 

7.1       Installation of Services.

You are responsible for the proper installation and functioning of the Services on your devices and the data network access required to be able to use the same, as well as any costs that may arise from the use of the Services and applications. While accessing and using our Services, data and connection fees and charges, e.g. from your mobile network provider, may be incurred, and you are solely responsible for paying them.  In addition, you are responsible for the procurement and updating of compatible hardware, software, and devices, which are necessary for access to the Services and to enable proper updates.  Burbowl® particularly reserves the right to cancel the Services or cancel the availability of the applications if you use the same with an incompatible or impermissible device. You understand that the Services may from time to time be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

 

7.2       Updates.

It is also your responsibility to check and ensure that you always have downloaded the correct applications to your device. This is particularly important when newer versions of the applications are published. Burbowl® is not obliged to maintain older versions or to ensure in any way that such older versions continue to work or are otherwise error-free. You should always update to the latest version of the applications, especially to be able to use new functions.  Burbowl® is not liable if you do not have a working data network access or a compatible mobile device or if you download the wrong applications version to your mobile device.

 

7.3       Ownership of User Content.

Subject to Section 10, Licenses, all User Content that is uploaded or otherwise to the Services shall be yours and exclusively yours, and you covenant that you have all the rights, licenses, consents, and exemptions required to provide such content to Burbowl® through our Services and to grant Burbowl® a license in your User Content.  Such User Content shall not violate, infringe, misappropriate the rights of third parties in intellectual property or other rights of third parties, publication rights or personal or data protection rights of third parties, disregard or violate applicable laws or regulations, or Burbowl’s right to use your User Content pursuant to its license to do so.

 

  1. Termination

Burbowl® reserves the unconditional and exclusive right to terminate, change, suspend, or discontinue the Services at any time and for any reason in its sole and exclusive discretion.  All points will be automatically forfeited upon termination.  In the case of termination, Burbowl® shall have no liability to you in connection with such change, suspension or discontinuance.  After a termination becomes effective, you can no longer collect new points and you may not be able to redeem existing points in your points account.

 

  1. Children and Restrictions.

The Services are not designed for children under the age of thirteen (13) and as such we expressly limit the use of Services to children aged thirteen (13) or older.  However, we understand that children under the age of 13 may use our Services without our consent or without their parents’ consent.  To that effect, in the event it is discovered that children under 13 years old are using our Services, we will endeavor to delete any information collected from our databases and to have their account deleted forthwith.  In the event your child is found to be using our Services, please contact us so we may endeavor to delete such information. We encourage parents and legal guardians to help enforce the Terms Policy by supervising your child’s internet activity and monitoring any potential use of our Services.  In any event, children under the age of eighteen (18), unless emancipated minors or with the express permission of their parents or legal guardian, shall not access our Services.

 

  1. Rights Granted and Restrictions.

10.1     License to use Services.

Subject to your compliance with these Terms, Burbowl® grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device or computer solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Burbowl.®

 

10.2     License to use User Content.

By providing User Content to Burbowl®, you grant Burbowl® and any third party provider a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit and use in any manner in Burbowl’s sole and absolute discretion such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services) without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

 

10.3     Unauthorized Use.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Burbowl®; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks. Modification or other unauthorized use of any materials displayed on the Services is a violation of our rights and the rights of our third party licensors, and may even violate the civil and criminal law. Without limiting Burbowl’s remedies, you agree that you will promptly, within 24 hours, remove any infringing or otherwise objectionable materials from any platform or service if Burbowl® or its agent requests that you do so, and that you will maintain the ability to remove such content from any platform or service on which you cause it to be placed or with which you cause it to be affiliated.

 

10.4     Intellectual Property.

Client agrees that the Services are proprietary products and services and that all right, title and interest in and to the Services, including without limitation, all associated intellectual property rights such as trademarks and copyrights, are and shall at all times remain with Burbowl® and its third party licensors.  This Services and software behind them may contain trade secret and proprietary information owned by Burbowl® or its third party licensors.  Client shall not copy or distribute the Services or related software for any purpose.  Furthermore, Burbowl® retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.

 

10.5     No Ownership Rights.

The Services and all rights therein are and shall remain Burbowl’s property.  Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Burbowl’s company names, logos, product and service names, trademarks or services marks.  To that effect, you acknowledge that you do not acquire any ownership rights by using or downloading the Services.

 

  1. Third Party Services and Content.

The Services may be made available or accessed in connection with third party services and content (including advertising) that Burbowl® does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Burbowl® does not endorse such third party services and content and in no event shall Burbowl® be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc. and Google, Inc., will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS or Android. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third party beneficiary’s terms of service.

 

  1. Disclaimers; Limitation of Liability

12.1     DISCLAIMER.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BURBOWL® DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BURBOWL® MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. BURBOWL® DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS, INCLUDING ANY FRANCHISEES OR PARTICIPATING RESTAURANTS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

 

12.2     INFORMATION AND OPINIONS OF OTHERS.

THE INFORMATION AND OPINIONS OF OTHERS EXPRESSED THROUGH OUR SERVICES AND APPLICATION, OR ELSEWHERE THROUGH OTHER FORUMS RELATED TO OUR SERVICES AND APPLICATIONS AND REGARDING THE SAME, ARE NOT NECESSARILY THOSE OF BURBOWL®.  TO THAT EFFECT, WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE INFORMATION OR OPINIONS OF OTHERS, EVEN IF SUCH INFORMATION AND OPINION IS EXPRESS THROUGH OUR SERVICES OR APPLICATION.

 

12.3     LIMITATIONS OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY LAW, BURBOWL®, ITS PROVIDERS, AND ITS AFFILIATES (HEREINAFTER “BURBOWL®”) SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING THOSE BASED ON ANY CAUSE OF ACTION RELATING TO THE SERVICES, SUCH AS LOST PROFITS, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, LOST DATA, FAILURE OF PERFORMANCE, OMISSION, INTERRUPTION, DELETION, COMPUTER VIRUS, UNAUTHORIZED ACCESS, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF BURBOWL®, EVEN IF BURBOWL® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHER, BURBOWL® SHALL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES, OR OTHERWISE, ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF YOUR USE OF OR ACCESS TO THE SERVICES, (II) BURBOWL’S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF YOUR CONTENT OR OTHER DATA.

 

  1. Binding Arbitration; Waiver of Jury Trial; Waiver of Class Action; Opt-Out.

13.1     Conditions Precedent; Dispute Resolution

Burbowl® hopes that all disputes, claims or controversies can be resolved through open communication and without the need for arbitration. This gives you and us a fair chance to resolve any problems promptly and efficiently.  We take your concerns and problems seriously as we strive to provide a positive experience for our customers.  To that effect, in the event a dispute, claim or controversy arises out of or in connection with our Services to you, you must give us notice of such dispute, claim or controversy, and the relief requested, and state the facts giving rise to the same and your contact information.  Please send this notice by e-mail to [email protected] and by U.S. Postal Service Certified Mail, Return Receipt Requested, to Burbowl® Franchise Holdings LLC, 117 SE 3rd Ave., Miami, FL 33131.  We will contact you and within forty-five (45) days of our receipt of your notice.  Notwithstanding anything to the contrary herein, this Section 13.1 shall not apply to any disputes, claims, or controversies regarding intellectual property and the infringement, protection or validity of our trade secrets, copyright, or trademark, and any claims that you choose to pursue in small claims court.  If not resolved by this foregoing process, the dispute will be resolved by binding arbitration in Miami-Dade County, Florida by an impartial arbitrator as further detailed herein.

 

13.2     Scope.

Subject to Section 13.1, any controversy or claim arising out of or relating to the Terms or Privacy Policy, or any alleged breach hereof, shall be determined by binding arbitration.

 

13.3      Jurisdiction and Venue.

The United States Arbitration Act, 9 U.S.C. § 1, or the arbitration law of the State of Florida, governs this private dispute process. All hearings will be held in Miami-Dade County, Florida.

 

13.4     Selection of the Arbitrator.

If the claim is not settled, the Parties may select an arbitrator by mutual, written consent. Each candidate must be a licensed attorney in good standing with all courts before which he or she has been admitted to practice, but he or she need not reside in the state in which the hearing is held.   The proceeding shall be governed by a single arbitrator.

 

13.5     Hearings.

The Parties will cooperate with the arbitrator to set the hearing on a mutually convenient date. The hearing may be postponed only by agreement of all parties, or upon order of the arbitrator for good cause shown.  The arbitrator shall follow the Federal Rules of Evidence.  The arbitrator shall have power to compel the production of documents, materials, and things within any Party’s possession or control and may limit proof or strike claims or defenses as a sanction for contempt. The arbitrator shall have no power to compel attendance of witnesses or testimony, but may draw appropriate inferences from a Party’s failure to make available a witness listed by another Party.  The arbitrator may recess the hearing as the interest of justice requires.  The Parties shall equally pay the arbitrator’s fee and expenses, and the cost of any stenographic transcription of the hearing. Any Party may be represented at the hearing by counsel, but each Party is to bear their own litigation costs and attorney fees.

 

13.6     Award.

The arbitrator shall issue a written opinion, and within twenty (20) days from the date the opinion is issued, the Parties to the arbitration may apply to the arbitrator to modify or correct his award if there is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award, or if the award is imperfect as a matter of form not affecting the merits of the controversy. Otherwise, the arbitrator’s award shall be final and binding on the parties.  Upon application of any party to the arbitration, a court of competent jurisdiction shall confirm an award. Upon confirmation, the arbitrator’s award shall have the effect of a judgment as to all matters which were or could have been contested in the arbitration.

 

13.7     Enforcement.

On application to a court of competent jurisdiction, Burbowl® may compel resort to Arbitration, and may compel enforcement of its terms. In any such action, Burbowl® shall be entitled to dismissal of any civil suit or administrative proceeding, or a portion thereof, which has been commenced by or on behalf of the complainant.  Any contracted Party who agrees to participate in this Arbitration, such agreement obtained upon the use of the Services, and subsequently files a lawsuit raising claims which would be subject to this process, shall be considered in material breach of the Terms, and Burbowl® shall be entitled to have such lawsuit dismissed, and shall be entitled to recover from you the costs of obtaining dismissal of the lawsuit, including reasonable attorney’s fees.

 

13.8     WAIVER OF JURY TRIAL. 

ALL PARTIES TO THIS AGREEMENT KNOW AND UNDERSTAND THAT THEY HAVE A CONSTITUTIONAL RIGHT TO A JURY TRIAL. HOWEVER, IN THE EVENT A DISPUTE, CLAIM, OR CONTROVERSY IS FOUND BY A COURT TO BE EXCLUDED BY THESE ARBITRATION PROVISIONS, THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. 

 

13.9     Waiver Of Class Action

Except as expressly provided herein, any arbitration or court action hereunder shall proceed solely on an individual basis without the right for any claims to be arbitrated or litigated on a class or collective action basis or on a basis involving claims brought in a purported representative capacity on behalf of others or any governmental body or the public.  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 arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated. The terms of this provision will be binding on you, your heirs, successors, and assigns.

 

13.10   Right to Opt-out of Binding Arbitration and Class Action Waiver.

You have the right to opt-out and not be bound by this arbitration provision and this class action waiver by sending written notice of your decision to opt-out to Burbowl® Franchise Holdings, LLC at  [email protected] and by U.S. Postal Service Certified Mail, Return Receipt Requested, 117 SE 3rd Ave., Miami, FL 33131.  The written notice must be postmarked or emailed within thirty (30) days of your first use of the website or the application or the Services.  Your written notification must include: (1) your name, (2) your physical postal address, and (3) a clear statement that you do not wish to resolve disputes with Burbowl® through arbitration; to the contrary, you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section. If chosen to opt-out, Burbowl® will likewise not be bound by arbitration.  If you do not affirmatively elect to opt out as described above, your use of the website, application and the Services shall constitute your irrevocable acceptance of these Terms and any changes/updates to this Section.

 

  1. Indemnity.

You agree to indemnify and hold Burbowl® and its officers, directors, employees, and managers, and its affiliates, harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Burbowl’s use of your User Content; or (iv) your violation of the rights of any third party.

 

  1. Miscellaneous

15.1     Choice of Law; Venue.

These Terms are governed by and construed in accordance with the laws of the State of Florida, without giving effect to any conflict of law principles.  Each party irrevocably and unconditionally renounces any objection to venue, which shall be Miami-Dade County.

 

15.2     Notices; DMCA.

Burbowl® may give notice to you through its Services to the e-mail, phone number, or address you provided to us upon registration.  You may give notices to Burbowl®, with such notice deemed given when received by Burbowl®, at any time by e-mail to [email protected] and by U.S. Postal Service Certified Mail, Return Receipt Requested, to Burbowl® Franchise Holdings LLC, 117 SE 3rd Ave., Miami, FL 33131.  Regarding the intellectual property rights of others, our designated agent under the Digital Millennium Copyright Act for the receipt of any claims infringement is the same as above.

 

15.3     Severability and Waiver.

If any provision, sentence, phrase or word of this Agreement or the application thereof to any party or circumstance shall be held invalid, the remainder of this Agreement, or the application of such provision, sentence, phrase or word to that person, shall not be affected thereby.  No consent or waiver, express or implied, with respect to any breach or default shall be deemed to be a consent or waiver with respect to any other breach or default.