FREEBIRDS APP TERMS AND CONDITIONS

This Freebirds App (the “App”) is offered by Tavistock Freebirds, LLC or its franchisees (“Freebirds”, “we”, or “us”).  These Terms and Conditions (“Terms and Conditions”) apply only to this App and the Rewards Program (as defined below) offered herein, and not to any other website, mobile app, product, service, or program offered by us.  These Terms of Use are a legal and binding agreement between you and Freebirds governing your use of this App, which includes its content, information, services, and features, and your participation in the Rewards Program.

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 enroll or participate in the Regards Program. 

NOTE:  THESE TERMS AND CONDITIONS ALSO CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND CONDITIONS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH FREEBIRDS.  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

Modifications

We may modify these Terms and Conditions from time to time. When we do, we will notify you by email at the email address you provided to us or otherwise as required under applicable law.  It is therefore very important that you update your account information or notify us when your email address changes. Any changes to this 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, Freebirds 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.  You further agree that Freebirds may (but is not required to ) send to your mobile device automatic updates to the App from time to time; if you block or disable such automatic updates, the App may cease or fail to function or not contain certain features.  Upon any termination, the rights and licenses granted to you herein shall terminate, and you must cease all use of the App.

Content and 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 Freebirds and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights.  Subject to your compliance with these Terms and Conditions, Freebirds 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, reverse engineer or derive source code from, 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.  Freebirds 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.  Any violation of these Terms and Conditions will result in the termination of your rights to access and use the App.

Any content that you post or otherwise make available on or through the App, except such Content owned by Freebirds, its subsidiaries or business partners, shall be deemed “User Generated Content”, including comments, materials, information, data, profiles, messages, notes, links to websites, text information, photos, music, videos, designs, graphics, sounds, and any other content.   All User Generated Content submitted by you on the Site or via the Services will be considered non-confidential and non-exclusive. You grant to Freebirds a non-exclusive, non-revocable, worldwide, transferable, royalty-free, perpetual right to use your User Generated Content in any manner or media now or later developed, for any purpose, commercial, advertising, or otherwise, including the right to translate, display, reproduce, modify, create derivative works, sublicense, distribute, assign and commercialize without any payment due to you.

You agree not to use the App to post or transmit any User Generated Content or other material which is or may be infringing on intellectual property rights of others, harassing, threatening, false, misleading, inflammatory, libelous, an invasion of privacy or disclosure of private information, obscene, pornographic, abusive, discriminating, illegal or any material that could constitute or encourage conduct that would be considered a criminal offense, violate the rights of any party or in other ways may give rise to civil liability or non-compliance with any relevant laws of your local jurisdiction.  You agree to defend, indemnify and hold harmless Freebirds from any and all claims, losses, liabilities, or expenses (including attorney’s fees) arising from your User Generated Content or your violation of these Terms and Conditions.

Rewards Program

Freebirds offers the Freebirds Rewards Program (the “Rewards Program“) to reward and thank our loyal restaurant customers.  The Rewards Program is available to enrolled members at participating Freebirds restaurants in the United States.  Points (as defined below) and Rewards (as defined below) accumulated under the Rewards Program are promotional and have no cash value, and may not be sold, bartered, traded, transferred or assigned by operation of law or otherwise.  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 50 United States and the District of Columbia; (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 or a minor in your jurisdiction of residence, 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:

Visit www.freebirds.com/web_login to create a Rewards Account; or

Through your Facebook account using the App.

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, Freebirds will send you transactional, informational, and promotional messages and/or offers.  These communications may happen in the form of push notifications through the App, email, and/or any other ways you may have selected when you enrolled in the Rewards Program.  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.

You will earn and receive Points (as defined below) toward Rewards (as defined below) as follows:

Qualifying Purchases:  Members will earn and receive points (“Points”) toward Rewards by making qualified purchases at participating Freebirds restaurants and scanning the bar code on the receipt from your purchase with the built in scanner in the App or uploading a photo of your receipt within 24hours of your purchase. You will earn one Point per for each $1 purchased based on the actual amount paid (excluding taxes and tips).  If you purchase an item at a discount, Points will be based on the discounted amount actually paid.  Further, you may only earn Points for one purchase per 4 hour period meaning that you will only be eligible for one receipt submission per visit regardless of the number of transactions you make during that visit.

A qualified purchase means a purchase of food or beverage at a participating Freebirds restaurant, excluding the following: (a) alcohol purchases; (b) catering orders; (c) third party vendor facilitated orders where the purchase price is not directly collected by Freebirds; (d) purchases of gift cards; (e) food truck and off-site events;  (f) restaurant buyouts (reserving an entire restaurant for an event)  and (g) Point redemptions.

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 24 hours of your purchase to verify the eligibility of your purchase. After this verification, the Points to which you are entitled will be applied to your Rewards Account. You can track the Points and Rewards you have already earned and that you may earn in the future by logging into your Rewards Account History.

Social Media Sharing & Referral Bonuses:  You can also receive an extra 10 Points for every Facebook friend you refer who joins our Rewards Program and starts earning Points.  Your extra Points will not be awarded until the referred member enrolls in the Rewards Program and earns their first Points or uses your invite code.

You can also share your Freebirds experience on your personal Facebook page 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 Freebirds website, Facebook page, and/or other social media outlets.

Rewards:  By accumulating Points in your Rewards Account, you will be entitled to earn certain rewards (“Rewards”), which you may redeem at participating Freebirds restaurants.  The type of Reward that is applicable will be based on the number of Points in your account.  A minimum number of Points may need to be earned before you are eligible for any Reward.

Each Reward will be valid for 14 days unless otherwise specified. Once you have accumulated the appropriate number of Points you can redeem these Points for Rewards at the rate listed in the App. 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.  Points are valid for 365 days, unless a longer period of time is required by law, in which case the Points are valid for the minimum period of time required by law.

Additional Rewards Program Terms:  Freebirds 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) account, or that the use of your account is unauthorized, deceptive, fraudulent or otherwise unlawful. Freebirds 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.  Freebirds also reserves the right to “unregister” and make ineligible for the Rewards Program any Rewards Account that has been inactive for 365 days. Inactive is defined as no Rewards earned.

Freebirds 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 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, unless such expiration is prohibited by law, in which case the Rewards will remain in effect for the minimum period required by law.

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 Freebirds immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by Freebirds 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.  Freebirds shall not be liable for any loss or damage arising from your failure to comply with these obligations.

No Warranties

THIS APP, THE CONTENT, AND THE REWARDS PROGRAMS ARE  PROVIDED  ON AN “AS IS”, AND “AS AVAILABLE” BASIS, AND  FREEBIRDS HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE FOREGOING, FREEBIRDS DOES NOT GUARANTEE THAT THE APP OR CONTENT WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.

Limitations of Liability

IN NO EVENT SHALL FREEBIRDS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES (DIRECT OR INDIRECT) WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS APP (INCLUDING ITS MODIFICATION OR TERMINATION), THE CONTENT, THE REWARDS PROGRAM, OR THESE TERMS OF USE, WHETHER OR NOT FREEBIRDS MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

Electronic Communications

When you visit this App or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this App. 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.  You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions.

International Users

This App is controlled, operated, and administered by Freebirds 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.

DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER

Please Read This Provision Carefully.  It Affects Your Legal Rights.

This Dispute Resolution and Arbitration; Class Action Waiver Provision  (“Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and Freebirds.  Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against Freebirds in the same proceeding.

This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of the terms of this Provision constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury.  We prefer this because we believe arbitration is less drama-filled than litigation.  To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow this Provision and can award the same damages and relief as a court (including attorney’s fees).  You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, You must first give Freebirds an opportunity to resolve the Dispute which is first done by emailing to Freebirds at legal@freebirds.com  the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, than you may pursue your Dispute in arbitration.  You may pursue your dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”).  You may opt-out of this Provision by emailing Freebirds at legal@freebirds.com the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with Freebirds through arbitration. Either way, we will not take any decision you make personally.  In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Freebirds.  But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Provision governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action procedures or rules apply to the arbitration.

Because the App and these Terms and Conditions concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration AwardThe arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitrationyou or we may initiate arbitration in either New York or the federal judicial district that includes your billing address.  In the event that you select the latter, we may transfer the arbitration to Texas so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.

Payment of Arbitration Fees and CostsSo long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration.  If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you.  Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by accepting this Provision in these Terms and Conditions, you and we are each waiving the right to a jury trial or a trial before a judge in a public court.  In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions).  Except as otherwise provided below, those rights are waived.  Other rights that you would have if you went to court (e.g. the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your rights to or your discontinued use of the App.  Notwithstanding any provision in these Terms and Conditions to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Freebirds to adhere to the language in this Provision if a dispute between Freebirds arises.

Governing Law/Venue

These Terms and Conditions are governed by and subject to the laws of the State of Texas, USA and, where applicable, U.S. federal law, without regard to conflict of law principles.  Except for claims subject to arbitration as set forth above, you agree to submit to the exclusive jurisdiction and venue of the courts located in Texas for any disputes arising out of these Terms and Conditions, the App, or the Rewards Program. Notwithstanding this or the arbitration Provision, you agree that Freebirds may apply for injunctive or other equitable relief in any court of competent jurisdiction.

Privacy

Please review our Privacy Policy located at https://freebirds.com/privacy-policy/ (the “Privacy Policy”), which is incorporated herein and also governs your use of this App, to understand Freebirds privacy practices.

General Provisions

All or any of Freebirds’ 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 Freebirds assets.  If, for any reason, a court of competent jurisdiction finally determines any provision of these Terms and Conditions or any portion thereof to be unenforceable, such provision will be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions will continue in full force and effect.  Freebirds failure to act with respect to a breach by you or others does not waive Freebirds right to act with respect to that breach or subsequent or similar breaches.

 Questions

If you have any questions regarding the App, the Rewards Program, and/or these Terms and Conditions, you can contact us at appsupport@freebirds.com.

Last Updated

Terms and Conditions last updated on 5.31.16.

Copyright © 2016 Tavistock Freebirds, LLC.All rights reserved.