Terms of Use

User Agreement

Terms and Conditions

Last Updated: January 6th, 2021

Thank you for visiting our website terms and conditions (the “Terms and Conditions“). The Terms and Conditions govern your use of https://villagebowls.com/ and any of our associated websites that link to the Terms and Conditions (each, a “Website“), the services and resources enabled therein (each a “Service” and collectively, the “Services“), and each of our branded applications that include links to these Terms and Conditions (each an “Application,” and together with the Website and Services, the “Properties“). These Terms and Conditions are a legal agreement between you and BBQ Holdings, Inc. dba Village Bowls, its subsidiaries and affiliated companies (collectively, “BBQ Holdings”).

PLEASE BE AWARE THAT THE SECTION TITLED “DISPUTE RESOLUTION” INCLUDES AN AGREEMENT TO ARBITRATE ANY DISPUTES WITH US AND AS APPLICABLE OUR SUBSIDIARIES AND AFFILIATES AND REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION UNLESS YOU OPT OUT WITHIN 30 DAYS. IT ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THE “DISPUTE SECTION” SECTION CAREFULLY.
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PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING OR USING THE PROPERTIES AND/OR BROWSING A WEBSITE OR DOWNLOADING AN APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ABRH, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE PROPERTIES.

BBQ HOLDINGS CAN CHANGE, MODIFY OR ADD OR REMOVE PROVISIONS OF THE TERMS AND CONDITIONS AT ANY TIME BY POSTING A CHANGE NOTICE OR UPDATED TERMS AND CONDITIONS ON THE WEBSITE OR APPLICATION. IF ANY CHANGE, MODIFICATION, ADDITIONAL PROVISION OR REMOVAL OF A PROVISION IS UNACCEPTABLE TO YOU, YOU MUST CEASE USING THE PROPERTIES. YOUR CONTINUED USE OF THE PROPERTIES WILL BE CONCLUSIVELY DEEMED TO INDICATE YOUR ACCEPTANCE OF THE CHANGE. PLEASE REGULARLY CHECK THE WEBSITE OR APPLICATION TO VIEW THE THEN-CURRENT TERMS AND CONDITIONS.

Use of the Properties
1. Placing Orders. You can place orders online for pickup from BBQ Holdings stores through the online ordering system operated by olo.com. You can place these orders either as a guest or through an online account that you can create. To create an account, you must provide your first and last name, email address and a proposed password. Once your account is established, you can use that account to place orders. Please note that information you provide when setting up and using your account will be provided to BBQ Holdings, olo.com, and potentially other third party service providers, and will also be subject to olo.com’s User Agreement and Privacy Policy, which is available for viewing on the online ordering page.
2. Loyalty and Rewards Programs. We may work with third parties to assist us in connection with our loyalty and rewards programs on our Properties. If you join a loyalty or rewards program, you may be able to use your account to access certain information and earn rewards and special offers. As part of these programs, certain account information may be shared with third party service providers (including, without limitation, your name, email address, payment information and information regarding the purchases you make with us).
3. License. The Properties are protected by copyright laws throughout the world. Subject to your compliance with the Terms and Conditions, BBQ Holdings grants you a limited non-exclusive, non-transferable, revocable license to use, and in the case of an Application to download, install and use a copy of the Application on a mobile device or computer that you own or control and to run such copy of the Application, solely for your own personal, non-commercial purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple iTunes App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
4. Updates. You understand that the Properties are evolving. As a result, BBQ Holdings may require you to accept updates to the Application that you have installed on your computer or mobile device. You acknowledge and agree that BBQ Holdings reserves the right, in its sole discretion, to modify the Properties from time to time, with or without notice. You may need to update third-party software from time to time in order to use or access the Properties.
5. Privacy Policy. Your use of the Properties is also governed by the BBQ Holdings Privacy Policy, which is available at: https://www.villagebowls/privacy-policy (the “Privacy Policy”). You agree that we may use your personal information in accordance with the Privacy Policy.
Limitations on Your Use of Properties.
The rights granted to you in the Terms and Conditions are subject to the following restrictions: (a) you may not attempt, or authorize, encourage, or support others’ attempts, to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Properties; (b) you may not copy, distribute, sell, resell, or exploit for any commercial purposes any portion of the Properties, or any products accessible through the Services; (c) you shall not use any manual or automated software, devices or other processes, including, without limitation, spiders, robots, scrapers, data mining tools, and the like, to “scape” or download data from any web pages contained in the Website; (d) you shall not access the Properties to build a competing or similar website, application or service; (e) except as expressly stated herein, no part of the Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not access or use the Properties in any way that violates applicable law. Any future release, update or other addition to the Properties shall be subject to the Terms and Conditions. BBQ Holdings reserves all rights not granted in the Terms and Conditions. Any unauthorized use of the Properties terminates the licenses granted by BBQ Holdings hereunder.
Termination.
If you breach the Terms and Conditions, BBQ Holdings may suspend or terminate your ability to use the Properties immediately, with or without notice to you, in all instances in addition to any remedies otherwise available to it at law or in equity. If you want to terminate the Terms and Conditions, you may do so by (a) ceasing all use of the Properties and (b) closing any applicable account for all Services that you use. Upon termination of the Terms and Conditions, your right to use the Properties automatically terminates. BBQ Holdings will not have any liability whatsoever to you for any suspension or termination. All provisions of the Terms and Conditions, which by their nature should survive, shall survive termination of the Terms and Conditions, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.
Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE PROPERTIES IS AT YOUR OWN RISK. THE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BBQ HOLDINGS 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. ABRH MAKES NO WARRANTY THAT THE PROPERTIES WILL MEET YOUR REQUIREMENTS, OR THAT THE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE PROPERTIES IS DONE AT YOUR OWN RISK, AND BBQ HOLDINGS MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE PROPERTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ABRH OR THROUGH THE PROPERTIES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability.
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BBQ HOLDINGS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, 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 PROPERTIES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS PARAGRAPH REFLECT THE ALLOCATION OF RISK SET FORTH IN THE TERMS AND CONDITIONS AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF ABRH TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE PROPERTIES, EXCEED TO ONE HUNDRED DOLLARS ($100).
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.
Indemnification.
You agree to indemnify, defend and hold harmless BBQ Holdings, and each of its agents, employees, franchisees, 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 in connection with (a) any information you (or anyone accessing the Properties using your account) submit or transmit through the Properties, (b) your use of or access to the Properties, (c) your violation of the Terms and Conditions, (d) your violation of any rights of any third party, or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the Properties.
Intellectual Property Ownership.
Except for any content and information you upload to the Properties, you agree that BBQ Holdings own all rights, title and interest in the Properties, including all trademarks, copyrights, and other intellectual property rights relating thereto. All Properties are protected by relevant intellectual property laws. No element of any of the Properties may be modified, reproduced, transmitted, sold, offered for sale, publicly displayed, or redistributed in any way without BBQ Holdings prior written permission. All trademarks, brands, slogans and other indicia of origin (“Marks”) that appear on or in connection with the Properties are the property of BBQ Holdings and/or its affiliates, licensors and/or licensees. You are not authorized to use any such Marks.
App Stores.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iTunes or Google Play app stores (“App Store”). You acknowledge that the Terms and Conditions are between you and BBQ Holdings and not with the App Store. ABRH, not the App Store, is solely responsible for the Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and Conditions and will have the right to enforce them.
Links to Third Party Sites.
The Website may have links to other websites that are not affiliated with BBQ Holdings (collectively, “Third Party Websites”). Those websites will have different terms and privacy policies from the ABRH Website and you further acknowledge and agree that your use of such Third Party Websites is governed by the respective third party website privacy policy and terms and conditions and/or user guides. BBQ Holdings provides links to the Third Party Websites to you as a convenience, and BBQ Holdings does not verify, make any representations or take responsibility for such Third Party Websites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Websites. YOU AGREE THAT ABRH WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEBSITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. Any reference on the BBQ Holdings Website to any product, service, publication, institution, organization of any third party entity or individual does not constitute or imply BBQ Holdings endorsement or recommendation.
Dispute Resolution
To the extent there are any conflicts between the language below and the remainder of our Terms, the language below shall govern.

Arbitration Agreement
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Site, mobile sites, SMS/MMS programs, any products or services sold or distributed through the Site, or the Terms and prior versions of the Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that were not noticed or that involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.Informal Dispute Resolution. If a Dispute arises between you and us, we are committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and we agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and we agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.

To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to us should be sent by email to us.legal@mtygroup.com and via regular mail to our offices located at BBQ Holdings, Inc., Attention: Legal Department, 12701 Whitewater Drive, Suite 100, Minnetonka, MN 55343. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute, including the specific relief sought.

We will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.

The Notice must be signed by the party initiating the Dispute (i.e., either you personally or a our representative).

The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.

The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

Waiver of Jury Trial. YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and we agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located court in Hennepin County, Minnesota or the United States District Court for the District of Minnesota. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or us from participating in a class-wide or mass settlement of claims.

Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. Unless doing so would violate applicable law, the arbitrator shall apply Arizona law consistent with the Federal Arbitration Act, and applicable statutes of limitations, and shall honor claims of privilege recognized at law. Foreign laws do not apply.

If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, or after the completion of the Informal Dispute Resolution Conference, if such Informal Dispute Resolution Conference was requested, whichever is later, you and we agree that either party shall have the right to finally resolve the Dispute through binding arbitration.

The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to us should be sent by email to us.legal@mtygroup.com and regular mail to our offices located at BBQ Holdings, Inc., Attention: Legal Department, 12701 Whitewater Drive, Suite 100, Minnetonka, MN 55343. We will provide the Demand to your email address on file. It is your responsibility to keep your contact information up to date.

If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and 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 (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).

Unless you and we otherwise agree, or the Batch Arbitration process discussed in the “Batch Arbitration” subsection is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”).

You and we agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under the “Batch Arbitration” subsection is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.

Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

Attorneys’ Fees and Costs. Unless fee shifting is specifically authorized by law or by the NAM Rules, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.

Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.

All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us, subject to ultimate allocation by the Administrative Arbitrator.

You and we agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: BBQ Holdings, Inc., Attention: Legal Department, 12701 Whitewater Drive, Suite 100, Minnetonka, MN 55343, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Famous Dave’s account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. Any opt-out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or our rights. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.

Invalidity, Expiration. If any part or parts of this Arbitration Agreement (other than the “Waiver of Class or Other Non-Individualized Relief” and “Batch Arbitration” subsections are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if either or both the “Waiver of Class or Other Non-Individualized Relief” and “Batch Arbitration” subsections of this Arbitration Agreement are found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state court in Hennepin County, Minnesota or the United States District Court for the District of Minnesota. You further agree that any Dispute that you have with us as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

Modification. You and we agree that we retain the right to modify this Arbitration Agreement in the future. Any such changes will be posted at this URL and you should check for updates regularly. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, we will notify you. Your continued use of the Site mobile sites and/or SMS/MMS programs – for example, not deleting your account; or accessing, browsing, or otherwise using the Site, mobile sites, SMS/MMS programs; or accepting products or services offered through the Site or the mobile sites – following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of these Terms with an arbitration agreement and you did not validly opt out of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
Waiver.
Any waiver or failure to enforce any provision of the Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability.
If any provision of the Terms and Conditions is, for any reason, held to be invalid or unenforceable, the other provisions of the 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.
Assignment.
The Terms and Conditions, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without BBQ Holdings prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure.
BBQ Holdings 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.
Entire Agreement.
The 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.