Terms and Conditions for Tender Greens App, Rewards Program and Gift Card

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This TENDER GREENS App (the “App”) is offered by T.Y.P. Restaurant Group, Inc. d/b/a Tender Greens and/or its subsidiaries, licensees, franchisees and affiliated companies (“Tender Greens”, “we”, or “us”). These Terms and Conditions (“Terms and Conditions”) apply only to this App and the Rewards Program (as defined below) (collectively part of the “App”) offered herein, and not to any other website, mobile app, product, service, or program offered by us. The Gift Card Terms and Conditions are set forth separately below. These Terms and Conditions are a legal and binding agreement between you and Tender Greens governing your use of this App, which includes its content, information, services, and features.

Please read these Terms and Conditions, which apply to your use of this App and enrollment and participation in our Rewards Program. If you do not agree to these terms, then do not use this App or participate in the Rewards Program.

1. Modifications

We may modify these Terms and Conditions from time to time. When we do, we will notify you by email or otherwise as permitted or required under applicable law. It is therefore required that you update your account information, including when your email address changes. Any changes to these Terms and Conditions will also be posted here. Your continued use of the App or participation in the Rewards Program after any modification confirms your acceptance to the modifications.

Additionally, Tender Greens may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to this App or any portion thereof; (2) change, revise, or modify this App or any portion thereof; (3) interrupt the operation of this App or any portion thereof for maintenance and support; (4) impose limits on certain features and services, or restrict access to the App; and/or (5) terminate the authorization, rights, and license given above. Upon any termination, the rights and licenses granted to you herein shall terminate, and you must cease all use of the App.

2. Content & Use

This App and all content, information, and other materials featured, displayed, contained, and available on this App (collectively, the "Content") are owned by or licensed to Tender Greens and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights. Subject to your compliance with these Terms and Conditions, Tender Greens grants you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download this App for noncommercial purposes only. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, this App or its Content.

You agree to use this App and the Content in accordance with these Terms and Conditions and all applicable laws and regulations. Tender Greens may prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to this App, the Content, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions and/or applicable law.

3. Rewards Program

Tender Greens offers the Tender Greens Perks Program (the "Rewards Program") to reward and thank our loyal restaurant customers. The Rewards Program is available to enrolled members at participating Tender Greens restaurants in the United States. Points and Rewards accumulated under the Rewards Program are promotional and have no cash value. There are no membership fees associated with the Rewards Program.

Eligibility: You may enroll in the Rewards Program if you: (1) are a legal resident of the United States; (2) at least 13 years of age at the time you enroll; (3) have an active, valid e-mail address; and (4) are a human being. No corporations, partnerships, limited liability companies, or other legal entities can participate in the Rewards Program.

The Rewards Program is not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Rewards Program under the supervision of a parent or legal guardian who agrees to be bound by these Terms and Conditions.

Enrollment/Rewards Account: You can enroll in the Rewards Program and create a Rewards account (“Rewards Account”) in one of the following ways:

Click here to create a Rewards Account;
Create a Rewards Account on Tender Greens online ordering site located at order.tendergreens.com; or
Download the Tender Greens mobile application to your Android™ or iPhone® device and create a Rewards Account. You may also follow the prompts to create a Rewards Account through your Facebook account.

Your Rewards Account is personal to you and may not be sold, transferred or assigned to, or shared with family, friends or others. You may have only one (1) Rewards Account.

As a part of the Rewards Program, Tender Greens will send you transactional, informational, and promotional messages and/or offers. These communications may happen in the form of push notifications through the App to your device, email, SMS or text message, with message and data rates applying, and/or any other ways you may have selected when you enrolled in the Rewards Program or to which you thereafter consented. If your contact information changes, or if you wish to change your contact information or the method by which we send you messages, please log into your Rewards Account and update your contact information or preferences. Tender Greens will also provide for opt-out and unsubscribe options as required by law, some of which are made available via your phone and/or email settings. You may contact Tender Greens for assistance in any opt-out via [email protected].

Earning Points and Offers for Rewards: You will earn and receive Points (as defined below) toward offers for rewards, which are defined as a thing given by Tender Greens to you, (“Rewards”) as follows:

Qualifying Purchases: Members will earn and receive Points toward Membership Levels by making qualified purchases at participating Tender Greens restaurants or otherwise participating in. You will earn one Point per purchase of $1 or more (each a “Point”). Taxes, tips, and fees, including without limitation, delivery fees, and bag fees, may also be excluded and ineligible for Points.

To receive Points for a qualified purchase, scan the bar code on the receipt or use a QR code scanner at the register from your purchase with the built in scanner in the App or upload a photo of your receipt within 7 days of your purchase to verify the minimum purchase requirement of $1. After this verification, the Points to which you are entitled will be applied to your Rewards Account. You can track the Points and offers and/or Rewards you have already earned and that you may earn in the future by logging into your Rewards Account History. Points for qualifying purchases from participating stores are automatically added to your Rewards Account within twenty-four (24) hours. From time to time, we, or others acting with our permission, may offer you special promotions that offer you bonus points (“Bonus Points"). Bonus Points will be awarded as described in the applicable promotional or special offer and will be subject to any additional terms set forth in the promotional offer. Read each offer carefully for specific details, expiration dates, limitations and restrictions.

Tender Greens Rewards Program Levels:

Currently, there are three (3) levels of benefits within Tender Greens Rewards Program that are determined by the number of Points that you accumulate in your Rewards Account each year. By opening a Rewards Account you will be automatically enrolled in Tender Greens Rewards Program at the Fan Level. If you earn at least three hundred (300) points within the twelve (12) month period following your enrollment date, you will qualify for the Friend Level. If you earn at least one thousand (1,000) points within the twelve (12) month period following your enrollment date, you will qualify for the Family Level.

Once you reach a specific level within the Tender Greens Rewards Program, you will receive the benefits that are applicable to that level at that time. However, you must continue to earn and accumulate Points in order to maintain your benefit level. Points expire and reset to zero one year following your anniversary date, unless an exception is otherwise communicated to you in writing from Tender Greens, with your continued participation in the Rewards Program serving as your agreement with Tender Greens to any such limited exception. Upon expiration of your Points, your Membership Level also expires without your maintaining your previously earned Membership Level status, and you must earn the Points necessary to qualify for any Membership Level under Tender Greens Rewards Program, absent separate agreement by Tender Greens.

To maintain the Friend Level, you must earn at least three hundred (300) new Points during a 12-month period following the date you reached the Friend Level. If you do not earn 300 new Points in 12 months, you will be placed at the Fan Level of the Tender Greens Rewards Program and your Points balance will automatically reset to zero (0). To maintain the Family Level, you must earn at least one thousand (1000) new Points during a 12-month period following the date you reached the Family Level. If you do not earn 1000 new Points in 12 months, you will be placed at the Level of Tender Greens Rewards Program based on your current Points earned for that year and your Points balance will automatically reset to zero (0).

You can view and track your Points balance and available offers by using the Tender Greens App. Tender Greens reserves the right to change the number of benefit levels and to change the benefits and rewards associated with each level of the Rewards Program in its sole discretion at any time.

FAN LEVEL REWARDS

By registering on the order online site (http://order.tendergreens.com) or in the App, you are automatically entered into the “Fan Level" of the Tender Greens Rewards Program. Fan Level Rewards may include:

Invitations to certain promotions, offers or events. Tender Greens may offer Tender Greens Rewards Program members early or extended access to special menu items or discounts.
Personalized offers and coupons. Special offers may be distributed by email, the News section on the Tender Greens App, or by physical mail. You must opt-in to receive promotional and marketing offers from Tender Greens and may be required to provide a valid email, telephone and physical address in order to receive your special offers. Special offers may be customized based on purchase behaviors and preferences. Special offers may include periodic discounts on food, beverages and merchandise, or the opportunity to earn Bonus Points. Special offers may have certain restrictions including expiration dates and short, time-limited redemption periods. Special offers are personal to you and cannot be shared, copied or transferred. Read each offer carefully for specific details, expiration dates, limitations and restrictions.

FRIEND LEVEL REWARDS

After you earn three hundred (300) Points in a 12-month period, you reach the “Friend Level" and your point balance is reset to zero (0) on your anniversary date. Friend Level Rewards may include:

All of the benefits of Fan Level Rewards.
Starting January 21, 2021, a free dessert reward and 10% off reward on your birthday if you have earned four hundred (400) Points prior to your birthday. You will receive one (1) complimentary dessert item valued at $5.50 or less and one (1) 10% off reward subject to the below:
- The complimentary dessert and 10% off birthday Rewards may be redeemed at participating stores one reward at a time. Is non-transferrable. Not redeemable for cash or cash equivalent.
- If you have provided Tender Greens with a current, valid email address, you will receive a reminder email from Tender Greens on your birthday (that is, the birthday date of record that you provided in your Tender Greens account information) indicating that your Rewards are available to you.
Early or extended access to certain promotions, offers and event invitations. Tender Greens may offer Tender Greens Rewards Program members early or extended access to special menu items or discounts.

FAMILY LEVEL REWARDS

After you earn one thousand (1,000) Points in a 12-month period, you reach the “Family Level" and your point balance is reset to zero (0) on your anniversary date. Family Level Rewards may include:

All of the benefits of Fan and Friend Level Rewards.
Exclusive offers or discounts only available for Family Level Rewards. Special offers may include periodic discounts on food, beverages and merchandise, or the opportunity to earn Bonus Points, subject to additional details, restrictions or limitations, including, without limitation, expiration dates and short, time-limited redemption periods. Special offers are personal to you and cannot be shared, copied or transferred.
Opportunities to gain access to exclusive, invitation-only events. You must opt-in to receive promotional and marketing offers from Tender Greens and may be required to provide a valid email, telephone and physical address in order to receive your special offers. An invitation does not guarantee a seat, event RSVPs may be based on availability.

Social Media Sharing & Referral Bonuses: You can also share your Tender Greens experience through the App. You have the option to make your comment public, but please note that by making your comment public, we may use your comment on the Tender Greens website, Facebook page, and/or other social media outlets, and you hereby grant a perpetual, royalty-free license to Tender Greens to do so.

Offers: By accumulating Points in your Rewards Account, you will earn surprise offers, a type of Reward, every 50 points at the Fan Level and every 100 points at the Friend level, which you may redeem at participating Tender Greens restaurants. The Reward will be valid for 14 days. Once you earn a Reward, you may start accumulating Points towards another Reward. You may only redeem one Reward per visit regardless of the number of Rewards you have earned in your Rewards Account. A Reward may not be combined with any other offer or coupon.

Additional Rewards Program Terms: Tender Greens reserves the right to terminate your Rewards Account and/or your participation in the Rewards Program if we determine in our sole discretion that you have violated these Terms and Conditions, you have more than one (1) Rewards Account, or that the use of your Rewards Account is unauthorized, deceptive, fraudulent or otherwise unlawful. Tender Greens may, in its sole discretion, suspend, cancel, or combine Rewards Accounts that appear to be duplicative, and may refuse to allow you to re-enroll in the Rewards Program. Tender Greens also reserves the right to “unregister” and make ineligible for the Rewards Program any Rewards Account that has been inactive for three years. Inactive is defined as no Points or Rewards earned.

Tender Greens has the right at any time, with or without giving you prior notice, to:

end or cancel the Rewards Program and/or any specific Reward;
change any Reward or other Rewards Program benefit we offer;
change the requirements, including, without limitation, the number of Points required, for earning a particular Reward;
change the time you have in which to earn a particular Reward; and/or
change any other feature of the Rewards Program.

If we end the Rewards Program, Rewards you have earned but not used will expire on the end date, and you may not redeem any Rewards or use any credits after the end date.

4. Login and Registration

Certain features or services offered on or through this App may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify Tender Greens immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by Tender Greens or any other App user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.

You may not use anyone else’s account or login information. Tender Greens shall not be liable for any loss or damage arising from your failure to comply with these obligations.

5. No Warranties

YOU EXPRESSLY AGREE THAT USE OF THIS APP, THE CONTENT, AND THE REWARDS PROGRAM IS AT YOUR OWN RISK. ALL PARTS OF THE APP, CONTENT AND REWARDS PROGRAM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TENDER GREENS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. TENDER GREENS MAKES NO WARRANTY THAT ANY PART OF THE APP, CONTENT OR REWARDS PROGRAM WILL MEET YOUR REQUIREMENTS. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS OR SERVICES YOU OBTAIN THROUGH USE OF THE APP, CONTENT OR REWARDS PROGRAM ARE OBTAINED AT YOUR OWN RISK, AND TENDER GREENS MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SAME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TENDER GREENS OR OTHERWISE THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.

6. Limitation of Liability

YOU UNDERSTAND THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TENDER GREENS OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE APP, CONTENT OR REWARDS PROGRAM OR YOUR PURCHASE OF ANY PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY GIFT CARDS, VIA THE APP OR ANY THIRD-PARTY SERVICE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF TENDER GREENS TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE APP, CONTENT OR REWARDS PROGRAM OR YOUR PURCHASE OF ANY PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY GIFT CARDS, VIA THE APP OR ANY THIRD-PARTY SERVICE, EXCEED ONE HUNDRED DOLLARS ($100). THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION REFLECT THE ALLOCATION OF RISK AGREED UPON AS REASONABLE BY THE PARTIES AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY INCLUDED. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.

7. International Users

This App is controlled, operated, and administered by Tender Greens from offices within the United States of America. We make no representation regarding use of this App outside of the United States. You may not use this App or export any portion of it in violation of U.S. export laws and regulations. If you access this App from locations outside of the United States of America, you are responsible for compliance with all local laws.

8. Privacy

Please review our Privacy Policy located at https://www.tendergreens.com/privacy-policy (the “Privacy Policy”), which is incorporated herein and also governs your use of this App, to understand Tender Greens’ privacy practices. Tender Greens allows you to control personalized results via your choice of enabling of location services and sharing of personal and non-personal information via the App.

9. Indemnification

You agree to indemnify, defend and hold harmless Tender Greens and its agents, employees, representatives, licensors, affiliates, officers and directors, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) resulting or arising from any third-party claim based upon or arising in connection with (a) your use of or access to the App, Content or Rewards Program; (b) any information you submit or transmit through the App; (c) your violation of these Terms and Conditions; (d) your violation of any rights of any third party in connection with your use of the App; or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the App.

10. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury

Please read the terms of this Section 10 (this “Arbitration Agreement”) carefully. It is part of your contract with Tender Greens and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION, A CLASS ACTION WAIVER AND A WAIVER OF TRIAL BY JURY.

(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms and Conditions or the use of the App or any product or service provided by Tender Greens that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Tender Greens, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms and Conditions.

(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (a "Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Tender Greens should be sent to [email protected]. After the Notice is received, you and Tender Greens may attempt to resolve the claim or dispute informally. If you and Tender Greens do not resolve the claim or dispute within thirty (30) days after such Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c) Arbitration Rules. Arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS online at http://www.jamsadr.com or by phone at 1-800-352-5267. To begin an arbitration proceeding, you must serve Tender Greens’ registered agent for service of process: National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, DE 19904 United States.

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Tender Greens will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Tender Greens will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.

Any arbitration will take place in county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone to the extent permitted by the JAMS Rules. The arbitrator may award on an individual basis the same damages and relief as a court (including injunctive relief).

Judgment on the award may be entered in any court of competent jurisdiction.

(d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

(e) Time Limits. If you or Tender Greens pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.

(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Tender Greens, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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 Tender Greens.

(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Tender Greens in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TENDER GREENS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.

(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tender Greens.

(m) Small Claims Court. Notwithstanding the foregoing, either you or Tender Greens may bring an individual action in small claims court.

(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.

(p) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit for such purpose to the personal jurisdiction of the courts located within Los Angeles County, California.

11. Miscellaneous

(a) Choice of Law. These Terms and Conditions are governed by U.S. federal law and the laws of the State of California, consistent with the Federal Arbitration Act and without resort to any conflicts of law provisions.

(b) Notice. Where Tender Greens requires that you provide an e-mail address, you are responsible for providing Tender Greens with your most current e-mail address. In the event that the last e-mail address you provided to Tender Greens is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms and Conditions, Tender Greens’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tender Greens only at the following address: T.Y.P. Restaurant Group, Inc. d/b/a Tender Greens, 1201 West 5^th Street, Suite T-400, Los Angeles, California 90017, with a copy to [email protected]. Such notice shall be deemed given when received by Tender Greens by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

(c) Waiver. Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(d) Severability. If any provision of these Terms and Conditions is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms and Conditions 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.

(e) Export Control. You may not use, export, import, or transfer any part of the App except as authorized by U.S. law, the laws of the jurisdiction in which you obtained such App, and any other applicable laws. In particular, but without limitation, no part of the App may be exported or re-exported (i) into any United States embargoed countries, or (ii) 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 the App, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the App for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Tender Greens are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any products or the App or any other technology of Tender Greens, either directly or indirectly, to any country in violation of such laws and regulations.

(f) Electronic Communications. The communications between you and Tender Greens use electronic means, whether you use the App or send Tender Greens e-mails, or whether Tender Greens posts notices on any part of the App or communicates with you via e-mail. For contractual purposes, you (i) consent to receive communications from Tender Greens in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tender Greens provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

(g) Release. You hereby release Tender Greens, its affiliates and each of their officers, directors, employees, and agents and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the App, Content or Rewards Program, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of these Terms and Conditions or your use of the App, Content or Rewards Program. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

(h) Assignment. The Terms and Conditions, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tender Greens’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. All or any of Tender Greens’ rights and obligations hereunder may be assigned to a subsequent owner or operator of this App in a merger, acquisition or sale of all or substantially all of Tender Greens’ assets.

(i) Force Majeure. Tender Greens 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.

(j) Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, or any Products obtained by you via the Service, please contact us by writing to: T.Y.P. Restaurant Group, Inc. d/b/a Tender Greens, 1201 West 5^th Street, Suite T-400, Los Angeles, California 90017, with a copy to [email protected]. 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.

(k) 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, California 95814, or by telephone at (800) 952-5210.

(l) Entire Agreement. These Terms and Conditions 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. In the event of any conflict between these Terms and Conditions and those set forth with respect to the Tender Greens Gift Card Terms and Conditions, the above Terms and Conditions shall govern.

Tender Greens Gift Card Terms and Conditions

These Terms and Conditions (this “Agreement”) describe the terms and conditions that apply to the use of Tender Greens gift cards (“Gift Cards”), including gift certificates and electronic gift cards (“egift Cards”) and Tender Greens promotional, loyalty, rewards, and incentive cards (“Promotion Cards” and, collectively with Gift Cards and egift Cards, “Cards”). In this agreement, the term “Card” or “Cards” may refer interchangeably to Gift Cards, egift Cards, or Promotion Cards.

This Agreement is between you (“Cardholder,” “you,” or “your”) and T.Y.P. Restaurant Group, Inc., the issuer of the Card (“Issuer,” “we,” “us,” or “our”). By purchasing, accepting, or using your Card, you agree to be bound by this Agreement. If you do not agree with this Agreement, do not purchase, accept, or use the Card.

Note: This Agreement includes a binding arbitration provision, a class action and jury trial waiver, and limitations on liability and damages.

1. About Your Card.

Cards are issued by Issuer. Issuer is responsible for the operation and maintenance of the Card program and the sole legal obligor to the Cardholder. Cards can be purchased at participating Tender Greens restaurants and via Tender Greens mobile app. Promotion Cards may be provided to you as a promotion in connection with the purchase of a Gift Card or in connection with another promotion at participating Tender Greens restaurants. Cards are valid only if obtained from a participating Tender Greens restaurant, www.tendergreens.com, or another authorized distributor. Cards are not valid if obtained from unauthorized sellers or resellers, including through Internet auction sites. Cards are not debit or credit cards. The value on your Card is not insured by the Federal Deposit Insurance Corporation (FDIC), nor does it earn interest.

2. Balance Inquiries.

For balance inquiries, please contact us by phone at 310-954-1415 or online at [email protected], or visit any participating Tender Greens restaurant. The balance you receive when inquiring over the telephone or online is an estimate only. In most cases, the balance is adjusted 24 hours after you make a purchase, but there may be occasions when the balance adjustment is delayed.

3. Expiration/Deactivation.

Gift Cards do not expire, and no fees for inactivity or service fees apply to such Cards. Promotion Cards may expire and/or impose fees; please check the specific terms and conditions on the front and back of each Promotion Card for details. Issuer reserves the right to refuse to honor any Card in the event of a disputed credit card charge, bounced check, or other failure of consideration.

4. Redemption.

Cards are redeemable only for purchases of food or other products at participating Tender Greens restaurants and through the Tender Greens app. Cards have no cash value and may not be redeemed for cash except as required by law. Cards are not redeemable to purchase another Card or towards previously purchased goods or services.

5. Reloadable.

Gift Cards may be reloaded with value. Egift Cards and Promotion Cards cannot be reloaded with value at this time.

6. No Refunds.

Cards are not refundable or redeemable for cash unless required by law. You may not return or cancel your egift Card after it is received.

7. Lost, Damaged, or Stolen Card.

The value of any lost, damaged, or stolen Card, or any Card altered or used without authorization, will not be replaced or replenished, except in limited circumstances with proof of purchase. If you suspect someone has copied or stolen your Card, contact us by phone at 310-954-1415 immediately.

8. Limitations.

The maximum value that can be associated with any one Card is $500 and the total amount of Card purchases for any one individual may not exceed $2000 in one (1) calendar day. Cards cannot be resold or transferred for value, and are void if resold or transferred for value.

9. Our Privacy Policies.

Information that you provide when purchasing a Card online is subject to the following Privacy Policy: https://www.tendergreens.com/privacy-policy.

10. Mandatory Binding Arbitration.

Please read this section carefully. It affects legal rights that you may otherwise have and provides for individual final and binding arbitration of most disputes instead of resolution in court. Arbitration is the submission of a dispute to a neutral arbitrator, instead of a judge or jury, for a final and binding decision known as an “award.” Arbitration provides for more limited discovery than in court, is subject to limited review by courts, and the result is confidential. Each party has an opportunity to present evidence to the arbitrator in writing or through witnesses. An arbitrator can only award the same damages and relief that a court would be able to award under the law and must honor the terms and conditions contained in this Agreement.

A. ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND PUNITIVE DAMAGES WAIVER.

You and Issuer agree that any dispute, whether at law or equity, arising out of or relating to this Agreement or your use of the Card, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide or collective) binding arbitration, except that you or Issuer may take claims to small claims court if they qualify for hearing by such a court.

You and Issuer agree that any arbitration under this Agreement will take place on an individual basis and that class, mass, consolidated or combined actions, arbitrations, or proceedings as a private attorney general are not permitted.

You and Issuer agree to waive the right to trial by jury.

This agreement to arbitrate extends to claims that you assert against other parties, including without limitation claims made against any of T.Y.P. Restaurant Group, Inc., its affiliates, related entities, franchisees and licensees, and their respective owners, officers, directors, agents, representatives and employees.

This agreement to arbitrate shall survive termination of this Agreement. Notwithstanding anything to the contrary, if any part of this agreement to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable. If any part of this agreement to arbitrate is deemed invalid or inapplicable, you and Issuer both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class, mass, consolidated or combined basis.

B. ARBITRATION PROCEDURES.

Arbitration shall be conducted by JAMS in accordance with its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS online at http://www.jamsadr.com or by phone at 1-800-352-5267. To begin an arbitration proceeding, you must serve Issuer’s registered agent for service of process: National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, DE 19904 United States.

Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Issuer will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Issuer will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.

Any arbitration will take place in or near the county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone to the extent permitted by the JAMS Rules. The arbitrator may award on an individual basis the same damages and relief as a court (including injunctive relief).

Judgment on the award may be entered in any court of competent jurisdiction.

11. Limitation of Liability.

ISSUER AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO CARDS, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT A CARD IS RENDERED NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH CARD. CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN THAT EVENT, THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS SHALL BE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW.

12. Governing Law.

Issuer and you agree that your use of the Card and this Agreement evidence transactions affecting interstate commerce and the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., governs the interpretation and enforcement of this Agreement and the agreement to arbitrate above.

This Agreement and your use of the Card shall otherwise be governed by and construed in accordance with the substantive laws of the State of California, without regard to principles of conflict of laws.

13. Changes to this Agreement.

Issuer reserves the right to change this Agreement from time to time in its discretion, which changes we may provide to you by any reasonable means, including without limitation by posting the revised version of this Agreement online at tendergreens.com.

14. Fraud.

Issuer reserves the right to refuse to honor a Card where Issuer reasonably suspects that the Card was obtained fraudulently.

Last Updated

Terms and Conditions last updated on 4/3/2019