Last Updated: June 12, 2023
Overview
The following Terms and Conditions set forth the agreement between you and Burtons Grill, LLC and our subsidiaries and affiliates (“Burtons,” “we,” “us,” or “our”) that informs you the terms, conditions, disclaimers, notices, policies, and agreements (collectively, “Terms”) governing your interaction with, purchase made, access to and use of services owned or operated by us, including websites located at https://burtonsgrill.com/ and any other websites linked to these Terms (“Site(s)”), our Burtons Grill mobile application (“App(s)”) and other services (together with the Sites and Apps, collectively, the “Services”).
YOUR CONTINUED ACCESS AND USE OF THE SERVICES ARE CONDITIONAL ON YOUR ACCEPTANCE OF AND CONTINUED COMPLIANCE WITH THE TERMS AND CONDITIONS SET OUT BELOW. By accessing or using the Service in any manner, including, but not limited to, visiting or browsing the Sites, registering an account, placing an order, making a reservation, or participating in loyalty programs, you expressly understand, acknowledge and agree to be bound by these Terms. Please read these Terms and any other terms referenced in this document carefully. If you do not agree to be bound by these Terms, you may not register, use or access the Services.
NOTICE REGARDING ARBITRATION AND DISPUTE RESOLUTION: WHERE ALLOWABLE UNDER APPLICABLE LAW, THESE TERMS CONTAINS A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE REVIEW SECTION 12 BELOW FOR DETAILS ABOUT ARBITRATION (INCLUDING THE PROCEDURE TO OPT-OUT OF ARBITRATION).
1. USE OF THE SERVICES
a. Representations. When you use the Services, you represent that: (a) the information you submit to the Services is truthful and accurate; (b) your use of the Services does not violate any applicable law or regulation; and (c) you are of sufficient legal age or otherwise have the legal capacity to legally enter into these Terms. You affirm that you are at least the age specified in any applicable age restrictions specified for the Service, fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set for in these Terms, and to abide and comply with these Terms.
Subject to any applicable age restrictions, you may establish a User Account or place an order only if (i) you are 18 years of age or older, or (ii) if your parent or guardian reads and accepts these Terms on their and your behalf if you are aged 13 or over but under 18 years of age. If you are less than 13 years of age and would like to use, subscribe, or interact with any other part of the Services, you represent that a parent or legal guardian has reviewed and agrees to these Terms on your behalf.
b. Accounts. Users may be required to register an account and specify a password to use certain features of our Services, including but not limited to, placing an order, joining our loyalty program (“User Account”). To create a User Account, you must be at least 18 years old, and you must provide truthful and accurate information about yourself. You agree to (a) create only one account; (b) provide accurate, truthful , current and complete information when creating your account; (c) maintain and promptly update your account information; (d) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (e) promptly notify us if you discover or otherwise suspect any security breaches relating to the Services; and (f) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
We reserve the right, in our sole discretion, to take any and all actions we deem necessary or reasonable to maintain the security of our Services and your User Account, including without limitation, terminating your User Account, changing your password or requesting information to authorize transactions on your User Account.
2. ORDERS FOR PRODUCTS AND SERVICES
This section applies to any online orders you place using the Services. Please read this section before you send any orders to restaurants using our Services.
a. Ordering System. You may submit your pickup, curbside or delivery order (“Order”) online to participating restaurants through the catering platforms linked from our Sites or within our Apps (“Ordering System”). You acknowledge that the availability of our Ordering System is dependent on your Internet connection. You further acknowledge that the images of products and packaging displayed in our Ordering System may be different from the product or packaging you receive from participating restaurants, due to your device’s display, ingredients used and lighting. When you use our Ordering System, you submit orders directly to a participating restaurant and the contract for supplying the products will be between you and the Burtons restaurant that accepts your order. The restaurant that delivered the products to you or you collect your products from is responsible for preparing the products and providing them to you.
b. Prices and Orders. You acknowledge that: (i) the prices for menu or other items displayed in our Ordering System may differ among participating restaurants due to taxes and fees required by local law; and (ii) participating restaurants reserve the right to change such prices at any time, at its discretion. You may be asked to supply certain information prior to us accepting or processing your Order, including but not limited to, your credit card number, the expiration date of your credit card, your billing address, and your delivery address. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any order; and that (ii) the information you supply to us is true, correct and complete. By submitting such information, you grant us the right to use or provide the information to third parties for purposes of facilitating the completion of Orders or providing our Services to you. You agree to pay in full the prices for any Orders you make either by credit/debit card concurrent with your online order or by other payment means acceptable to Burtons. You agree to pay all applicable taxes. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us. We reserve the right to refuse or cancel your Order at any time for certain reasons including but not limited to: product or Service availability; errors in the description or price of the product or Service; error in your Orders; or if fraud or an unauthorized or illegal transaction is suspected. Furthermore, we reserve the right to collect any rejection or insufficient funds fee and to process any such payment by the payment method you have submitted to us.
c. Transactions Involving Alcohol. You may have the option to request delivery of alcohol products in some of our locations. You agree that you will only order alcohol products if you are 21 years of age or older. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the individual delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. We reserve the right to refuse delivery if you are not 21 years of age or older, if you cannot provide valid government-issued identification, if the name on your government-issued identification does not match the name on your order, or you are visibly intoxicated. If we are unable to complete the delivery for one or more of the above-listed reasons, you will not be eligible for a refund and you may be subject to a non-refundable restocking fee.
d. Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. If you desire to seek a refund for any reason, please contact us at info@burtonsgrill.com. Burtons has no obligation to provide refunds, but may grant them at our sole discretion.
3. PROHIBITED USE OF OUR SERVICES
While using the Services, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You are prohibited to, or assist any other persons to:
i. use the Services to send or post harassing, abusive, or threatening messages;
ii. soliciting passwords or personal information for commercial or unlawful purposes, including hidden pages, links or images, providing instructional information about illegal activities, or which threatens our relationships with our partners, customers or suppliers;
iii. attempt to conceal or misrepresent the identity of the sender or person submitting the information, or otherwise invade someone’s privacy;
iv. disrupt the normal flow of the Services, including any dialogue on the Services or otherwise act in a manner that negatively affects other participants;
v. transmit through the Services any information, data, text, files, links, software, or other materials that are unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, hateful, racially, ethnically or otherwise objectionable;
vi. use the Services or any Content or User Content to stalk, harass, abuse, mock, ridicule, intimidate, disparage, defame, threaten, defraud, or otherwise mistreat or harm any person or class of people;
vii. post or generate User Content or use the Services that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the Content or its dissemination is unlawful;
viii.post or generate User Content or use the Services that has any risk or possibility of exploiting, harming, or endangering the health or well-being of children or other minors (“Children”), such as images of Children in sexualized costumes, poses, or a sexual fetishistic context, or which identifies, directly or indirectly, alleged victims of child sexual exploitation, or for the purpose of exploiting, harming or attempting to exploit or harm Children in any way;
ix. post or generate User Content or use the Services which may be discriminatory towards a person’s or class of people’s race, religion, color, age, ethnicity, national origin, disability, physical, or mental characteristics, sexual orientation, gender expression, gender identity, family status, medical or genetic condition, personality characteristics, or physical appearance, including through the material distortion of the behavior of any such person or class of people in a manner that causes or is likely to cause that person or class of people physical or psychological harm;
x. post or generate User Content or use the Services in such a way that damages the image or rights of Burtons, other users or third parties;
xi. send spam or other direct marketing communications or posting, transmitting or linking to any unsolicited advertising, promotional materials, or any other forms of solicitation or commercial content;
xii. post or transmit executable programming of any kind, including viruses, spyware, trojan horses, Easter eggs, or any other form of computer programming or disabling mechanism;
xiii. use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Services or the Content in whole or in part, including, without limitation, creating any frames at any other Services pertaining to any portions of this Services; and
xiv. attempt to circumvent, disable or otherwise interfere with security-related features of the Services that prevent or restrict use or copying of any Content or enforce limitations on use of the Services;
xv. use the Services (a) for fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation; (b) to provide medical advice or medical results interpretation; or (c) Generate Content or engage in Content Sharing used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g., by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily targeted use); or
xvi. intentionally or unintentionally perform or promote any activity that would violate any applicable local, provincial/state, national or international law, including, but not limited to, any regulations having the force of law while using or accessing the Services.
4. PRIVACY
Please read the Privacy Policy carefully to understand how we collect, use and disclose personal information from our users.
5. THIRD-PARTY CONTENT AND LINKS
Any information, statements, opinions, or other information provided by third parties and made available on our Services are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, service, offer, statements, or other third-party Content on our Services.
We may provide on the Services, solely as a convenience to users, links to websites, social media widgets, or other third-party websites that are not owned or controlled by Burtons. A description or link to such third-party services does not imply our endorsement of the third-party service. We have no control over, and assume no responsibility for, the Content, Privacy Policies, or practices of any third-party websites. In addition, Burtons will not and cannot censor or edit the Content of any third-party site. By using our Services, you expressly relieve Burtons from any and all liability arising from your use of any third-party website.
You agree that your use of third-party websites, applications, sites and resources, including without limitation your use of any Content, information, data, advertising, products, or other materials on or available through such third parties, is at your own risk and is subject to the terms and conditions of use applicable to such sites and resources.
6. SOCIAL MEDIA INTEGRATION
We may offer opportunities for you to transmit content via third-party social networking websites and products. Any use of third-party social networking features is subject to the terms of use of the applicable third-party website or product and not these Terms, unless you are notified otherwise, in which case the terms and conditions set forth in such notification will apply.
7. OUR INTELLECTUAL PROPERTY RIGHTS
a. Content. All names, logos, text, designs, graphics, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Service (“Content”) are protected intellectual property of, or used with permission or under license by Burtons and/or its licensors. Such Content may be protected by copyright, trademark, patent or other proprietary rights and laws. This includes the entire Content of the Service, copyrighted and protected as a collective work. All intellectual property rights associated with the Service, and related goodwill, are proprietary to us or our licensors. You do not acquire any right, title or interest in any Content by accessing or using the Service. Any rights not expressly granted herein are reserved and retained by Burtons and its affiliates, parents, and subsidiaries.
b. License Granted by Burtons. Subject to your compliance with these Terms, Burtons offers you a limited, non-exclusive, non-transferable, non-sub licensable license to access the Services and to access, download, and make personal and non-commercial use of Content available on through the Services. You may not reproduce, duplicate, copy, sell, resell, visit, or otherwise exploit for any reason any part of the Services for any commercial purpose without the express written consent of Burtons. You may only use the Services and Content as permitted by law. To use Content under such an exception, you must (1) keep any copyright, trademark, or other proprietary notices intact, (2) use such Content pursuant to any licenses associated with such Content, (3) not copy or post such Content on any networked computer or broadcast it in any media, (4) make no modifications to any such Content, and (5) make no additional representations or warranties relating to such Content. Except as otherwise expressly authorized herein or in writing by Burtons, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Service or the Content. Burtons reserves the right to refuse Service, terminate accounts, and/or cancel orders in its discretion, including, without limitation, if we believe that user conduct violates applicable law or is harmful to our interests.
8. CONTENT SUBMITTED BY YOU
a. User Content. Some of our services are designed to allow you publish or transmit through our Services information or content (“User Content”). You retain ownership of all User Content you submit, post, display, or otherwise make available via the Services. You agree, represent and warrant that you have all rights necessary to submit the User Content. You shall not upload, post or otherwise make available on or through our Services any User Content protected by copyright, trademark or other proprietary rights of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content. PLEASE DO NOT SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. By sending any ideas, concepts, know-how, proposals, techniques, suggestions or other User Content to us, you agree that: (i) we are free to use such User Content for any purpose, (ii) such User Content will be deemed not to be confidential or proprietary (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us. Be aware that we have no obligation to keep User Content confidential unless explicitly stated.
b. License Granted by You. By submitting, displaying, posting, publishing or uploading any User Content, including information, text, graphics or other materials, using the Services, you grant Burtons and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners, marketing or public relations agencies, and other affiliates (“Licensed Parties”) a non-exclusive, fully-paid, royalty-free, irrevocable, transferable, perpetual, worldwide, fully sublicensable and unrestricted right and license to use, modify, publicly perform, publicly display, reproduce, create derivative works from, distribute, and/or otherwise use such User Content in any manner to be determined in the Licensed Parties’ sole discretion, including, but not limited to, on webpages and social media pages operated by the Licensed Parties, in promotional emails and advertisements, and in any and all other marketing, promotional and advertising initiatives, and in any media now or hereafter known. The Licensed Parties may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials, alter and/or edit your User Content in any manner in their sole discretion. You will not receive any compensation of any kind for the use of User Content. You also grant to other users of the Services a non-exclusive, fully-paid, royalty-free, and perpetual license to access your Content during the course of their use of the Services as authorized herein. In addition, You grant Burtons a non-exclusive license to use any User Content for research or academic purposes, where Burtons may redistribute, publish, or cause the publication of anonymized copies of User Content in research papers or academic papers. This license you grant to Burtons lasts for as long as User Content is protected by intellectual property rights. Content in violation of these Terms may be removed without notice.
9. DISCLAIMER OF WARRANTIES
THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE SERVICES, INCLUDING CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET USERS’ OR CUSTOMERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. BURTONS ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT OR HARM, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT FROM YOUR ACCESS TO, USE OF, OR BROWSING IN THE SERVICES OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES.
WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, BURTONS AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SERVICES, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCTS OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SERVICES, OR IN CORRESPONDENCE WITH BURTONS OR ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SERVICES ARE PROVIDED BY BURTONS “AS IS”, EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND BURTONS OR ITS LICENSORS OR SUPPLIERS.
10. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICES: (1) THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK; (2) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT THAT YOU USE IN CONNECTION WITH YOUR USE OF OUR SERVICES; AND (3) THAT BURTONS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE OUR SERVICES, INCLUDING WITHOUT LIMITATION, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, OR NETWORK OR INTERNET FAILURE, OR INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF BURTONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BURTONS’ TOTAL LIABILITY FOR ANY CLAIMS RELATED TO THIS SERVICE EXCEED TEN DOLLARS.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, BURTONS, ITS AFFILIATES’, AGENTS’, LICENSORS’ AND SUPPLIERS’ DAMAGES IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
11. INDEMNITY
You agree to defend, indemnify and hold Burtons and its directors, officers, employees, agents or service providers harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising directly or indirectly out of or from (i) your breach of any provision of these Terms; (ii) your activities in connection with our Services; or (iii) the User Content or other information you provide to us through the Services. Burtons reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Burtons’ defense of such claim.
12. DISPUTE, ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. Initial Dispute Resolution. We are available by email at info@burtonsgrill.com or by mail to Burtons Grill LLC at 300 Brickstone Square, Ste 103, Andover, MA 01810, to address any concerns you may have regarding your use of the Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any Dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
b. Agreement to Binding Arbitration. For users of the Services that reside in North America, if we do not reach an agreed upon solution within a period of sixty (60) days from the time informal Dispute resolution is pursued pursuant to Section 14(a) above, then either you or we may initiate binding arbitration. Except for any Disputes excluded below in Section 13(d), all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. The arbitration shall be conducted in the Essex County, Massachusetts, and claims regarding the judgment of the arbitrator (including entry of judgment on the arbitration aware) may be brought and shall be subject to the exclusive jurisdiction of the state and federal court located in Essex County, Massachusetts. You or Burtons may elect to appear at the arbitration in person or, if you and we both agree, to conduct it remotely online via appropriate videoconferencing technology, in lieu of appearing live.
Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. In any arbitration before JAMS, the parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.
The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act. The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law. You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
c. Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION, COLLECTIVE ACTION OR CLASS ARBITRATION, OR AS A PRIVATE ATTORNEY GENERAL. To the extent applicable law does not permit waiver of private attorney general claims, but permits them to be arbitrated, then such claims shall be resolved in arbitration. You and we each further agree to waive our respective right to file a class action or seek relief on a class basis. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of this Agreement to Binding Arbitration cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies.
d. Exceptions. Notwithstanding the parties’ agreement to resolve all Disputes through arbitration, either party may seek relief (i) in a small claims court for Disputes or claims within the scope of that court’s jurisdiction, and (ii) any Disputes relating to intellectual property rights, obligations, or any infringement claims.
e. Exception—Mass Arbitration Before NAM. Notwithstanding the parties’ decision to have arbitrations administered by JAMS, in the event 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that the demands will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by the JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by National Arbitration & Mediation (“NAM”), a nationally recognized arbitration provider, and governed by the NAM rules in effect when the Mass Arbitration is filed as modified by this Agreement, including the NAM Mass Filing Supplemental Dispute Resolution Rules, but excluding any rules that permit arbitration on a class-wide basis (collectively, the “NAM Rules”). The NAM Rules are available at www.namadr.com or by calling 1-800-358-2550. Notwithstanding anything to the contrary above, you and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from a court of competent jurisdiction compelling compliance with this agreement and compelling administration of the Mass Arbitration before NAM. Pending resolution of any such requests to a court, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. You and we acknowledge that either party’s failure to comply with this paragraph would irreparably harm the other, and you and we agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this paragraph are resolved by the court.
f. 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions by sending written notice of your decision to opt-out by emailing us at info@burtonsgrill.com, with “Arbitration Opt-Out” in the Subject Line. The notice must be sent within thirty (30) days of your first use of the Services, or the effective date of these Terms; otherwise you shall be bound to arbitrate Disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
g. Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within two (2) years after such claim or cause of action arose or be forever barred.
h.Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth above do not apply or if you have opted out of arbitration, you agree that any litigation shall be filed exclusively in state or federal courts located in Essex County, Massachusetts (except for small claims court actions which may be brought in the county where you reside). In the event of litigation relating to these Terms or the Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
13. COPYRIGHT INFRINGEMENT NOTICES
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). If you believe that material located on or linked to by us violates your copyright, you are encouraged to notify us in accordance with the Digital Millennium Copyright Act. To do so, please send an email to info@burtonsgrill.com with the Subject Line “DMCA Notice”, and include the following:
- Identify the copyrighted work that you claim has been infringed;
- Identify the material or link on our Services that you claim is infringing your copyrighted work;
- Provide your full legal name, company affiliation, mailing address, telephone number, and email address; and
- Include in the body of your notice the following statement, followed by your electronic or physical signature: “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate our user’s access to and use of our Services if, under appropriate circumstances, the alleged user is determined to be a repeat infringer of the copyrights or other intellectual property rights of Burtons or others.
14. TERMINATION
The Services and these Terms are in effect until terminated by you or us. We may terminate these Terms by notifying you using any contact information we have about you or by posting such termination on our Services, including in your User Account. You may terminate these Terms by providing written notice of termination to us, including your detailed contact information and any User Account information using the method listed in the Contact Us section.
In addition to any right or remedy that may be available to us under applicable law, we may suspend, limit, or terminate all or a portion of your access to the Services or any of its features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon any such termination, (i) you must destroy all Content obtained from the Services and all copies thereof; (ii) you will immediately cease all use of and access to the Services; (iii) we may delete or disable access to any of your User Content at any time; (iv) and we may delete your User Account upon request. You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use that Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur. Your use of the Service after termination will be a violation of this section, which survives any termination.
The provisions of these Terms concerning protection of intellectual property rights, prohibited use, user submitted content, disclaimers, limitations of liability, indemnity, and disputes, as well as any other provisions that by their nature should survive, shall survive any such termination.
15. MISCELLANEOUS
a. No Modifications By Our Employees. If any of our employees offers to modify the terms of these Terms of Use, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
b. No Waiver. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
c. Severability. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
d. Assignment These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Burtons without restriction.
e. Entire Agreement. These Terms reflect the entire agreement between the parties related to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties.
f. Notices and Electronic Communications. When you visit our Services, or send e-mails or text messages to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail, text message, push notifications services or by posting notices on our Sites. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
16. NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: the provider of the Services is Burtons Grill LLC at 300 Brickstone Square, Ste 103, Andover, MA 01810. To file a complaint regarding the Services or to receive further information regarding use of the Services, send a letter to the above address or contact Burtons via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento CA 95834 or by telephone at 800.952.5210.
17. CHANGES TO THESE TERMS
We reserve the right to modify these Terms at any time without prior notice, at our sole discretion. We will use reasonable efforts to notify you of such changes. However, it is your responsibility to check the “Last Updated” legend at the top of this page periodically to see when these Terms were last revised. When changes are made to these Terms, they will become immediately effective when published on this web page unless otherwise noted.
If we modify these Terms materially, to the extent permissible under applicable law, such modification will be effective upon the earlier of (i) your first use of the Services with actual notice of such change, (ii) 30 days from the posting of such change. We may send you notice of the amended Terms in our sole discretion, and the manner of the notification may include, for example, email, posted notice on the Sites or Apps, or another reasonable manner. Your continued access and use of the Services following any such change constitutes your acceptance to be bound by the revised Terms then in effect. You agree that you will review these Terms periodically and that you shall be bound by these Terms and any modifications to it. Since our Services are evolving over time, we may also change or discontinue all or any part of the Services, at any time and without notice.
Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the Dispute arose. “Disputes” means any dispute, action, controversy, or claim arising out of or relating to any aspect of these Terms, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal or equitable basis and regardless of whether a claim arises during or after the termination of these Terms.
18. CONTACT US
If you have any questions about these Terms, your account or an order you have placed through the Service, please email us at info@burtonsgrill.com or mail to Burtons Grill LLC at 300 Brickstone Square, Ste 103, Andover, MA 01810.