Fresh Brothers Rewards Terms & Conditions

Effective Date: May 20, 2024

Last Updated: May 20, 2024

PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY. BY OPTING IN, ACCESSING OR PARTICIPATING IN THE FRESH BROTHERS REWARDS PROGRAM, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS, AS WELL AS ALL TERMS APPLICABLE TO YOUR USE OF THE FRESH BROTHERS APPLICATIONS (“APP(S)”) AND FRESH BROTHERS WEBSITES (“WEBSITE(S)”) AND ALL TERMS AND POLICIES INCORPORATED HEREIN BY REFERENCE, INCLUDING BUT NOT LIMITED TO FRESH BROTHERS PRIVACY POLICY AND OUR ONLINE SERVICES TERMS AND CONDITIONS OF USE (INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER TERMS) (THE “TERMS OF USE”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR PARTICIPATE IN THE FRESH BROTHERS REWARDS PROGRAM.

These Terms apply to your access to, and participation in, the Fresh Brothers Rewards program in the United States ("Program" or “Fresh Brothers Rewards”), which is operated by Fresh Brothers (collectively, “Fresh Brothers.,” “us,” "we," or “our”) and are a legally binding agreement between you and us. If you have questions regarding these Terms, please contact us at info@freshbrothers.com.

To become a Fresh Brothers Rewards member, you will be required to provide Fresh Brothers with some personal information including your name, email address, zip code, phone number and password. At your option, you may also provide Fresh Brothers with your birthday month and day to enable more personalized offers. All information submitted is subject to the Fresh Brothers Privacy Policy found here: https://www.freshbrothers.com/privacy-policy

THESE TERMS CONTAIN 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.

YOUR CONTINUED PARTICIPATION FRESH BROTHERS REWARDS IS SUBJECT TO YOUR CONTINUED COMPLIANCE WITH THESE TERMS. VIOLATION OF THESE TERMS AUTOMATICALLY TERMINATES YOUR PARTICIPATION IN FRESH BROTHERS REWARDS.

We reserve the right to change or modify these Terms or any policy or guideline pertaining to Fresh Brothers Rewards, in whole or in part, at any time and in our sole discretion. Any changes or modifications will be effective immediately and may be posted via our Apps or Websites or, when required, we will notify you of changes to these Terms in the mobile app and require you to accept before continuing.

CONTINUED PARTICIPATION IN THE PROGRAM AFTER CHANGES HAVE BEEN MADE TO THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE REVISED TERMS THEN IN EFFECT. YOU AGREE THAT YOU WILL REVIEW THESE TERMS PERIODICALLY AND THAT YOU SHALL BE BOUND BY THESE REWARD TERMS AND ANY MODIFICATIONS TO IT.

California Notice of Financial Incentive

Under California law, Fresh Brothers Rewards might be interpreted as a “financial incentive” program as it involves the collection of personal information. We do not assign a monetary value to the information we collect. Based on our reasonable estimate, the value of your personal information to us is related to the value of the free or discounted products or services that you obtain when you redeem points. This value is based on the expense related to offering those free or discounted products or services. You may withdraw from participating in Fresh Brothers Rewards at any time by contacting us at the address described in these Terms.

Program Description

Fresh Brothers Rewards is a way in which we reward and thank loyal Fresh Brothers customers. Fresh Brothers Rewards members (“you” or “Members”) are able to earn and accumulate points (“Points”) that can be redeemed for Fresh Brothers Rewards benefits ("Rewards") at participating Fresh Brothers restaurants (“Restaurants”). Not all of our Restaurants have the ability to participate in Fresh Brothers Rewards and provide or accept Rewards at this time. The Rewards are void where prohibited.

Members can earn Points to be redeemed for Rewards by logging into their User Account and placing an order in our Fresh Brothers App or Website or my scanning your QR at the counter or pickup window before you pay for your order. Points are earned through qualifying purchases or other opportunities that may be presented, such as participating in activities or events, multipliers, challenges and more. Points for “other activities” will be awarded as described in the promotion and are subject to their own terms. Points, Rewards and benefits are non-transferrable, have no cash value, and are not redeemable for cash or gift cards.

Eligibility

Fresh Brothers Rewards is free to join and there is no monthly or annual fee to participate. Fresh Brothers Rewards is intended for personal use only; commercial use is prohibited. Corporations or other entities or organizations of any kind are not eligible to participate in the Program.

Fresh Brothers Rewards is open to U.S. residents only who are at least 18 years old or the age of majority in their home state. The Program is limited to individuals only and is limited to one User Account per individual. User Accounts are personal and cannot be sold, transferred, or assigned to or shared with friends, family, or others. We reserve the right to cancel a User Account at any time in accordance with these Terms, including the “Cancelling or Terminating Your User Account” terms below. In addition to suspension or discontinuance of eligibility, we have the right to take appropriate administrative and/or legal action against such persons.

If you opt not to enroll in a My Reward's Membership, you are unable to participate in Fresh Brothers Rewards, receive select mobile offers, promotions and events, and/or other features that require authenticated access in Fresh Brothers Rewards.

How to Sign Up for Fresh Brothers Rewards

If you are eligible to enroll in the Program, to become a Member, you must first create a user account (“User Account”) in the App or on our Website. All User Accounts are subject to the user Accounts terms in the Terms of Use Current User Account holders who have created an online ordering account will be prompted to supply a zip code to complete enrollment in Fresh Brothers Rewards and must accept these Terms s before they are able to participate and enroll in Fresh Brothers Rewards (“Fresh Brothers Rewards Membership”). If a current User Account holder does not wish to participate in Fresh Brothers Rewards, they can still place online orders as a guest but will not earn Points.

We are not responsible for your use of a User Account or redemption of Points for benefits. It is your responsibility to manage unauthorized use or redemption of Points by family or friends or other individuals who might have access to the User Account. In the event your User Account is stolen, and the User Account is used or the Points are redeemed, you may contact us to investigate and determine, in our sole discretion, what remedy, if any, may be available. You are responsible for keeping your contact information current and accurate. We are not responsible for communications failures or other problems caused by out-of-date or inaccurate information provided by you.

Communication Options and Your Privacy

Information used with Fresh Brothers Rewards is governed by our Privacy Policy. Please read the Privacy Policy carefully to understand how we collect, use, and disclose your personal information, how to update or change your personal information, and how we communicate with you.

Fresh Brothers Rewards Program communications to Members may include in-App messaging, email, SMS text messaging, and push notifications. Members will be given the ability to opt in to each method of communication, except in-App messaging which is automatic and non-optional for App users. You may change your communication preferences as follows: (1) You may unsubscribe from promotional emails by clicking the “unsubscribe” link at the bottom of any email; (2) you may unsubscribe from SMS text notifications by replying with “STOP” or other opt-out language as instructed in any text message you receive from us regarding Fresh Brothers Rewards; (3) push notifications may be changed by adjusting the settings on your mobile device; and (4) you may exercise your privacy rights by submitting a request via our webform here https://www.freshbrothers.com/privacy-policy. For more information on SMS text messaging, please see our Terms of Use.

Except for a request to opt-out of the Program or delete your User Account, any exercise of Member privacy rights, including without limitation, opting out from our promotional emails, will not limit your ability to participate in the Fresh Brothers Rewards Program. Please note that if you are a consumer in a state with a data privacy law that provides the right to deletion and submit a deletion request, we will ask you if you want to terminate your Fresh Brothers Rewards Membership (and User Account) or to retain your Membership. If you do not respond to our request for an answer OR you respond and choose to delete your account, your Fresh Brothers Rewards Membership will be deleted. If you choose to retain your account, your Fresh Brothers Rewards Membership, we will continue to use your personal information to provide the Fresh Brothers Rewards Program and related services or as otherwise permitted by applicable law.

Additional Benefits

Members may be prompted to provide additional information so we can provide more personalized Fresh Brothers Rewards offers and experiences. Additional Member benefits, such as special promotions, offers, or events, may be available from time to time. These benefits may require a completed profile and/or opt-in to push notifications, email, and/or location services to be eligible and for you to receive notification of the benefits, all as explained in the terms of each offer. Failure to enroll for such communications, to activate such features, or to have network connectivity, may result in your not receiving information about benefits. We are not responsible for any such failures.

Any offers provided to a Member are subject to terms and conditions as stated on the specific offer, which may include limitations in the method in which the offer can be redeemed. Available offers can be viewed by Members in the Rewards section of the App or Website (must be logged into Fresh Brothers Rewards). All offers are subject to change or removal at any time in our sole discretion. You are only permitted to redeem one Reward OR one offer per transaction. You are responsible for applicable sales tax, which may vary based on local tax ordinances.

Cancelling or Terminating Your User Account

You may cancel your Fresh Brothers Rewards Membership (and User Account) at any time by submitting a request to info@freshbrothers.com.

We reserve the right to cancel any User Account at any time if: (1) such Member violates, or is suspected to violate, these Terms or any agreement between you and us (including the Terms of Use), engages in fraudulent or inappropriate conduct as determined in our sole discretion, violates any federal or state laws, statutes, or ordinances, or otherwise abuses the Rewards program, as determined in our sole discretion; or (2) if the User Account has been inactive for a period of two (2) years or more. Similarly, such action by you may result in you losing benefits accrued under the Program. Inactive is defined as failing to make an eligible Points-earning purchase, either in the App, on the Website, by scanning your Member QR code during your restaurant transaction. In addition to suspension or discontinuance of eligibility, we have the right to take appropriate administrative and/or legal action against such persons.

Upon User Account cancelation, any unused Points accrued in your User Account will be forfeited and cannot be redeemed and become null and void. Subsequent re-enrollment by the same Member will be at a zero-point balance. We reserve the right to refuse re-enrollment to any terminated Member based on previous fraudulent, abusive, or otherwise inappropriate behavior, as determined by us.

Earning Points

Once enrolled, Members will receive ten (10) Points for every one dollar ($1.00) spent on qualifying purchases at participating Restaurants when an order is place via one of the methods described below. Order subtotal, before taxes, fees, discounts and/or tips, must be a minimum of $1.00 to be eligible to earn Points. Points are rounded up or down to the nearest whole point value. For example, a qualifying purchase of $5.23 will earn 52 Points, and a qualifying purchase of $6.89 will earn 69 Points. When you register, you will receive ten (10) dollars ($10.00) off any order greater than twenty (20) dollars ($20.00), which will expire 30 days after registering. Additionally, you can receive a free personal pizza, including signature pizzas, between 5 days before your birthday until 7 days after your birthday each year.

Members can earn Points when: (1) placing a mobile order in the Fresh Brothers App (when enrolled and logged into a Fresh Brothers Rewards Membership; not as a guest); (2) ordering online with a qualifying purchase at participating Restaurant on the Fresh Brothers Website (when enrolled into a Fresh Brothers Rewards Membership; not as a Guest); (3) ordering in-person or over the phone with a qualifying purchase at a participating Restaurant and having a crew member scan your Member code during checkout or by providing credentials over the phone. We reserve the right to limit the number of transactions a Member may receive Points on within a given time period and/or by transaction type.

Other Terms, Conditions and Exclusions for Earning Points:

- Can't redeem points for alcoholic beverages.
- One redemption per order
- Gift card points are earned on redemption of the gift card, not on the sale of the card
- Points for any qualifying purchase can only be credited to one User Account.
- Points from one transaction cannot be split between multiple User Accounts.
- Points are awarded on eligible purchases, less any tax, Rewards/discounts redeemed, delivery/service fees and tips.
- Points accrued during a transaction may only be redeemed for a Reward in a separate, subsequent transaction.
- Points are earned on eligible items only. Gift cards, donations and other items may not qualify for Points.
- Points cannot be earned on purchases made through third party delivery services, such as DoorDash, GrubHub or UberEats.
- Points should be available in Account approximately 60 minutes after designated pickup time but can take up to 24 hours to appear in a User Account in some cases.
- Available Points will be displayed in a User Account in the App or on the web.
- Points are earned once a Member checks-in their App or Website order at the Restaurant. If an order is placed, but not checked in, or a user cancels their order, no Points will be received.

Redeeming Points and Reward

Available Rewards can be viewed by Members in the Rewards section of the App or Website (must be logged into Fresh Brothers Rewards). Rewards available in the Rewards Store are subject to change or removal at any time in our sole discretion. You must have minimum number of unredeemed and unexpired Points available for the Reward you wish to redeem. You are only permitted to redeem one Reward OR one offer per transaction. Each Reward is subject to terms and conditions as stated on the specific Reward, which may include limitations in the method in which the Reward can be redeemed. You are responsible for applicable sales tax, which may vary based on local tax ordinances. Rewards can be redeemed with no additional purchase required unless otherwise stated. Once a Reward is redeemed, Points will be subtracted from your User Account immediately when an order is checked in. All Reward claims are final.

A Reward for the value of a specific menu item can be redeemed only when the specific menu item is available at the participating Restaurant where you seek to redeem the Reward. For example, a Reward for the value of a lunch or dinner item cannot be redeemed during breakfast hours. If a menu item is discontinued or unavailable at a participating restaurant, the holder of a valid Reward for the value of the menu item may be allowed to redeem the Reward for an alternate menu item of equal or lesser value, as determined by us or a franchisee in their sole discretion.

You can earn $5.00 off any order for redeeming 750 points; free 6 pc knots for redeeming 1,000 points; free 12 wings (bone-in or boneless) for redeeming 1,750 points; free medium 2 topping pizza for redeeming 2,500 points (you may add additional toppings at an additional charge; and free large 2 topping pizza for redeeming 3,000 points (you may add additional toppings at an additional charge).

Other Terms, Conditions and Exclusions for Redeeming Points:

- Points expire 365 days from the day they were earned.
- When you redeem your Points for a Reward, your oldest available Points are used first.
- We reserve the right to limit the redemption of specific Rewards.
- We reserve the right to limit the number of Rewards available.
- We reserve the right to limit the number of Rewards or offers a Member can redeem within a given time period.

Changes or Termination of the Rewards Program.

The Program will continue until we terminate it, which we may do at any time, with or without notice to you. Upon discontinuation of the Program, you may lose all benefits under the Program, including those yet to be redeemed. We also reserve the right to suspend or modify the Program, at our discretion, at any time. By continuing to participate in the Program, you accept our modifications. We will use reasonable efforts to notify you of such changes. However, please check the “Last Updated” legend at the top of this page to see when these Terms were last revised. When changes are made to these Terms, they will become immediately effective when published on this page unless otherwise noted. We encourage you to periodically review these Terms ―there may have been changes to our policies that may affect you. If you do not agree to these Terms as modified, then you must discontinue your use of the Program. Your continued use of the Program will signify your continued agreement to these Terms as revised. We will make reasonable efforts to notify you of material changes to these Terms. Such efforts might include posting notice on the App, an email to the address we have on file, or a message in your User Account.

Disclaimer; Limitation of Liability.

By participating in the Program, you agree that all decisions we make regarding the Program are final. The Program is subject to all applicable laws and regulations. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH ANY PROGRAM, WHICH ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS.

WE AND OUR AFFILIATES, SUBSIDIARIES, DIVISIONS AND RELATED COMPANIES AS WELL AS OUR AGENTS, SUPPLIERS, SERVICE PROVIDERS, AND RETAILERS (COLLECTIVELY, THE “RELEASEES”) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OR THE INABILITY TO USE THE PROGRAM, CONTENT OR EXTERNAL LINKS, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, OR ANY COMPUTER VIRUS OR FAILURE.

RELEASEES WILL ALSO NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RELEASEES ALSO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS OR CONDUCT OF ANY USER OR OTHER THIRD-PARTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

IF A MEMBER PROVES THAT WE HAVE IMPROPERLY DENIED SUCH MEMBER ANY PROGRAM REWARDS, THEN THE MEMBER'S SOLE AND EXCLUSIVE REMEDY UNDER SUCH CIRCUMSTANCES WILL BE TO RECEIVE THE EQUIVALENT PROGRAM REWARD. MEMBERS IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF.

BY PARTICIPATING IN THE PROGRAM, EACH MEMBER AGREES THAT ANY LEGAL CLAIM OR CAUSE OF ACTION RELATED TO THE PROGRAM MUST BE SERVED AND FILED WITHIN ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE ACT IN WHICH THE CLAIM OR ACTION IS BASED. EACH MEMBER ACKNOWLEDGES AND AGREES THAT THIS ONE (1) YEAR CONTRACTUAL LIMITATIONS PERIOD IS NOT SUBJECT TO TOLLING AND MAY BE SHORTER THAN THE DEFAULT STATUTE OF LIMITATIONS THAT WOULD OTHERWISE APPLY. AFTER SUCH ONE (1) YEAR PERIOD, THE AFFECTED CLAIM OR CAUSE OF ACTION WILL BE DEEMED WAIVED, AND THE ACT, EVENT, CONDITION OR OMISSION UPON WHICH THE AFFECTED CLAIM OR ACTION IS BASED SHALL BE DEEMED INCONTESTABLE.

Indemnification

You agree to indemnify and hold harmless Fresh Brothers and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your misuse of Fresh Brothers Rewards; (b) your violation of this Agreement; or (c) your violation of any applicable laws, rules or regulations through or related to the use of Fresh Brothers Rewards. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys' fees incurred by the Indemnified Party. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with Fresh Brothers Rewards. You agree that the provisions in this Section will survive any termination of your account, this Agreement, or your access to Fresh Brothers Rewards.

Disputes, Arbitration, and Class Action Waiver.

These Terms are subject to the following Disputes, Arbitration, and Class Action Waiver.

Please read this Dispute Resolution section carefully. It affects your legal rights. It provides for resolution of most claims and disagreements between you and Fresh Brothers through individual arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This section also contains a jury trial waiver and a waiver of any and all rights to proceed in a class, collective, consolidated, private attorney general or representative action in arbitration, or litigation to the fullest extent permitted by applicable law.

(a) Mandatory Informal Dispute Resolution Process

There might be an occasion in which a Dispute (as defined below) arises between you and Fresh Brothers. Should such a situation arise, Fresh Brothers is committed to working with you to resolve the Dispute. Therefore, for any Dispute that arises between you and Fresh Brothers, both parties agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding as set forth below.

The informal Dispute resolution process requires that the party raising the Dispute send a personally signed, written notice to the other party, providing all of the following information: (i) name and contact information (address, telephone number, and email address); (ii) sufficient information to enable you or Fresh Brothers to identify any account and transaction at issue; and (iii) a detailed description of (a) the nature and basis of the Dispute and any claims, and (b) the nature and basis of the relief sought, with a detailed calculation for it. You agree to send the foregoing notice to the following email address: info@freshbrothers.com. Our notice to you will be sent to you based on the most recent contact information that you have provided to us. The time period referenced below begins to run upon receipt of a completed written notice.

You and Fresh Brothers then agree to negotiate in good faith about the Dispute, including through an informal and individualized telephonic settlement conference between you and Fresh Brothers if the party receiving the notice requests such a conference. If either party to the Dispute is represented by counsel, that party’s counsel may participate in this conference, but the party also must personally attend the conference. This process should lead to resolution of the Dispute, but if it is not resolved within 60 days after receipt of the completed notice detailed above (which period can be extended by agreement of the parties), you and Fresh Brothers agree to the further Dispute resolution provisions below.

This informal Dispute resolution process is a condition precedent and prerequisite to commencing arbitration or a proceeding in small claims court. The party initiating arbitration must include with a demand for arbitration a personally signed certification of compliance with the informal Dispute resolution process (if you initiate arbitration, then the certification must be signed by you and by your counsel, if you are represented; if we initiate arbitration, then the certification must be signed by a Fresh Brothers representative and our counsel, if we are represented.)

The parties agree that any relevant limitations period (including applicable statutes of limitations) and filing fee or other deadlines shall be tolled while the parties engage in this informal Dispute resolution process. If the sufficiency of a notice or compliance with this informal Dispute resolution process is at issue, it may be decided by a court of competent jurisdiction at either party’s election, and any formal Dispute resolution proceeding shall be stayed pending resolution of the issue. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration. Notwithstanding the foregoing, either party retains the right to seek appropriate relief for non-compliance in arbitration.

(b) Arbitration Agreement

Arbitration. Any Dispute between you and Fresh Brothers that cannot be resolved informally as detailed above shall be resolved through individual arbitration. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY TO THE FULLEST EXTENT PERMITTED BY LAW.

Notwithstanding the foregoing, either you or Fresh Brothers may elect to have a Dispute heard in small claims court on an individual basis if the Dispute qualifies for small claims court and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdictional limits of small claims court is for the small claims court to decide in the first instance and for a court of competent jurisdiction to otherwise decide.

“Dispute” shall be interpreted broadly and include, but not be limited to: any dispute or claim arising out of or relating to these Terms, your access to or participation in the Loyalty Program, or your relationship with Fresh Brothers, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Dispute shall include, but not be limited to, (i) any dispute or claim that arose before the existence of these or any prior Terms (including, but not limited to, claims relating to advertising); (ii) any dispute or claim that is currently the subject of purported class action litigation in which you are not a member of a certified class; and (iii) any dispute or claim that may arise after termination of these Terms. Dispute, however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property. The arbitrator shall decide all issues except the following (which are for a court of competent jurisdiction to decide): (i) issues that are specifically reserved for a court in these Terms; (ii) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, or any of the provisions of this Dispute Resolution section; and (iii) issues that relate to the arbitrability of any Dispute.

These Terms constitute a transaction in interstate commerce and this arbitration provision shall be governed by the Federal Arbitration Act and federal arbitration law (not state arbitration law). The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with the then-current Consumer Arbitration Rules of the American Arbitration Association (“AAA”) pursuant to its AAA Rules as modified by this arbitration agreement. You can obtain the AAA Rules from the AAA by visiting its website (https://adr.org/). If there is a conflict between this arbitration agreement and the AAA Rules, this arbitration agreement shall govern. You and we understand that the AAA made an administrative determination that this arbitration provision comports with the Consumer Due Process Protocols. That determination is final and you and we agree that neither a court nor an arbitrator shall have the authority to revisit it.

If the AAA is unable or unwilling to administer a proceeding consistent with this arbitration agreement as written, the parties shall agree on a substitute arbitration organization that will do so. If the parties cannot agree, the parties shall mutually petition a court of competent jurisdiction to appoint an arbitration organization that will administer the arbitration consistent with this arbitration agreement.

To begin an arbitration proceeding, after satisfying the informal process identified in the Mandatory Informal Dispute Resolution Process section above, you or we must (i) send a personally signed (by the initiating party and your or our counsel, if represented) demand for arbitration that complies with the AAA Rules and describes in detail (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (ii) send the personally signed certification of completion described in the Mandatory Informal Dispute Resolution Process section; and (iii) contact the AAA and follow the appropriate procedures to commence the arbitration. By signing the arbitration demand, counsel certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (i) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel. Your demand for arbitration must be sent to Fresh Brothers Legal Department, 7100 Corporate Drive, Plano, Texas 75024. Our demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to us.

You may choose to have the arbitration conducted by phone, video, in-person or through written submissions, except any Dispute over $25,000 shall have an in-person or video hearing. You and Fresh Brothers reserves the right to request a hearing in any matter from the arbitrator. If you initiate arbitration, then you agree to personally appear at any in-person, video, or telephonic hearing (along with your counsel, if you are represented). If we initiate arbitration, then Fresh Brothers agrees to have a representative appear at any in-person, video, or telephonic hearing (along with our counsel, if we are represented). If an in-person arbitration hearing is required, then it will be conducted at a location that is reasonably convenient to you or at another mutually agreed location. The arbitrator shall be located in reasonable proximity to you or the mutually agreed location if a hearing is required or requested consistent with the above.

A single arbitrator will resolve the Dispute consistent with these Terms and according to applicable law and facts based upon the record and no other basis. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect confidential or proprietary information. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the fullest extent permitted by applicable law, you and we agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, consolidated, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of class, collective, consolidated, private attorney general, or representative proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized injunctive or declaratory relief and class, collective, consolidated, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such a claim or request for relief will be decided by a court of competent jurisdiction, after all other claims and requests for relief are arbitrated. An arbitrator must follow and enforce these Terms of Use as a court would. The arbitrator shall issue a reasoned written decision that explains the arbitrator's essential findings and conclusions. The arbitrator's award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator's award. An arbitrator's award that has been fully satisfied shall not be entered in any court. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party.

Payment of filing and other fees shall be governed by the AAA Rules unless they are authorized by law or the arbitrator determines that a claim or proceeding was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); but if applicable arbitration rules or laws require Fresh Brothers to pay a greater portion or all of such fees and costs in order for this arbitration provision to be enforceable, then Fresh Brothers will have the right to elect to pay the fees and costs and proceed to arbitration. In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.

Additional Procedures for Mass Arbitrations. You and Fresh Brothers agree that the following additional procedures shall apply to Mass Arbitrations (as defined below). If 25 or more similar Disputes (including yours) are asserted against Fresh Brothers by the same or coordinated counsel or are otherwise coordinated (“Mass Arbitrations”), you understand and agree that these additional procedures apply and that the resolution of your Dispute might be delayed or that it might ultimately proceed in court. If your Dispute is part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Dispute from the time that your Dispute is first submitted to the AAA until your Dispute is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

STAGE ONE: Counsel for the claimants and counsel for Fresh Brothers shall each select up to 50 claims (per side) (100 claims total) to proceed first in individual arbitration proceedings as part of a staged process. Each of these cases shall be assigned to a different arbitrator and proceed individually. The number of Disputes to be selected in Stage One can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage One). If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of a staged process. After this initial set of proceedings, if counsel for the parties are unable to resolve the remaining Disputes at this time, counsel for the parties shall participate in a global mediation session with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One, and Fresh Brothers shall pay the mediator's fee.

STAGE TWO: If the parties are still unable to resolve the remaining Disputes at the conclusion of the mediation following Stage One, each side shall select 100 claims (per side) (200 claims total) to proceed as cases in individual arbitration proceedings as part of a second staged process. No more than 5 cases may be assigned to a single arbitrator to proceed individually. The number of Disputes to be selected in Stage Two can be increased by agreement of counsel for the parties (and if there are fewer than 200 Disputes, all shall proceed individually in Stage Two). If a case is withdrawn before the issuance of an arbitration award, another claim shall be selected to proceed as part of Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those Disputes. After this second set of staged proceedings, counsel for the parties shall engage in a second global mediation session of all remaining Disputes with a retired federal or state court judge jointly selected by counsel in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and Fresh Brothers shall pay the mediator's fee.

Upon the completion of the mediation set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms, including the other provisions of this Dispute Resolution section. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining Disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitrations, including the power to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees.

The Additional Procedures for Mass Arbitrations provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Arbitrations apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms, including the other provisions of this Dispute Resolution section.

Future Changes to the Binding Arbitration Agreement. If we make any future changes to the arbitration agreement (other than a change to our contact information), you may reject any such change by sending your personally signed, written notice via certified mail to: Fresh Brothers Legal Department, 11120 Hindry Avenue, Suite C, Los Angeles, CA 90045. Such written notice does not constitute an opt out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Fresh Brothers in accordance with this version of the arbitration agreement.

(c) Class Action Waiver

You and Fresh Brothers each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, collective, consolidated, private attorney general, or representative action. You and we agree to waive any right to bring or to participate in such an action in arbitration or in court to the fullest extent permitted by applicable law. Notwithstanding the foregoing, the parties retain the right to participate in a class-wide settlement.

(d) Jury Trial Waiver

You and Fresh Brothers waive any right to a jury trial to the fullest extent permitted by applicable law.

Conflict of Terms

Except as otherwise stated in the Terms of Use, if any provision contained in these Terms is in conflict with any provision in the Terms of Use, the provision contained in these Terms shall govern and control.

General

Choice of Law. This Agreement is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.

Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

Electronic Communications. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.

Entire Agreement. This Agreement is 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.

XV. Contact Information

If you have any questions about these Terms of Use, please contact us:

By email: info@freshbrothers.com

By visiting this page on our website: https://www.freshbrothers.com/contact-us/

By phone number: (310) 642-0533

By mail:11120 Hindry Avenue, Suite C, Los Angeles, CA 90045