Terms of Sale and License

General Terms

1. Claims This Section Applies To. This Section applies to all Claims between us. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed in Subsection (c), below) between you and us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party wishes to seek legal recourse and that arises from or relates to these Terms, our products, or the Website, including any claims related to the use or operation of our products or the Website, the purchase of any products or services made available through our Site, all privacy or data security claims, and all claims related to the validity, enforceability, or scope of this Section or any portion of it.
2. Informal Dispute Resolution Before Arbitration. a.If you believe you have a Claim against us or if we believe we have a Claim against you, the parties will first attempt to resolve the Claim informally to try to resolve the Claim more quickly and reduce costs for both parties. The parties will each make a good-faith effort to negotiate the resolution of any Claim for 45 days (“Informal Resolution Period”), from the day either party receives a written notice of a dispute from the other party that satisfies the requirements of this Subsection (b) (a “Claimant Notice”). The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. The Informal Resolution Period may be extended by the parties’ mutual written agreement. You must send any Claimant Notice to us by certified mail, addressed to National Restaurant Association Solutions, LLC, Attention: SVP Product Sales, 233 S. Wacker Drive, Suite 3600, Chicago, IL 60606-6383, USA, with a copy to National Restaurant Association, Attention: General Counsel, 2055 L Street NW, Suite 700, Washington, DC 20036, USA and to legal@restaurant.org. We will send any Claimant Notice to you by certified mail or email using the contact information you have provided to us. The party sending a Claimant Notice (the “Claimant”) will ensure it includes: (i) the Claimant’s name, address, email address (including the email address used to register on our Site, if applicable), and telephone number; (ii) a description of the nature of and basis for the Claim, including the date(s) on which the Claim arose and the facts on which the Claim is based, any remedy they have already received or a statement that no remedy has been received yet for such Claim; (iii) the specific relief sought; and (iv) a personally signed statement from the Claimant themselves (and not their counsel) verifying the accuracy of the contents of the Claimant Notice and that they authorize the filing of the Notice.
   
   During the Informal Resolution Period for each Claimant Notice, the parties will engage in at least one individualized video settlement conference, which both parties will personally attend (with counsel for both parties, if represented, invited to attend). If a party is unable to participate in the settlement conference by video, that party may attend telephonically upon showing of good cause warranting telephonic participation (e.g., inability to afford equipment or insufficient Wi-Fi due to indigent circumstances). You and we agree that the parties (and counsel, if represented) will cooperate to schedule the conference at the earliest mutually convenient time.
   
   No arbitration demand (“Arbitration Demand”) may be filed or proceed before a Claimant Notice is sent and the Informal Resolution Period has concluded. If you or we file an Arbitration Demand without complying with the requirements in this Section, including the requirement for the parties to conference and to wait for the Informal Resolution Period to conclude, the other party may seek relief from a court to enjoin such filing and for such other relief as the court deems proper. The prevailing party in any such action will be entitled to recover its costs and reasonable attorneys’ fees incurred in seeking such relief. To facilitate the parties’ efforts to reach an efficient resolution of any Claim, the applicable statutes of limitation will be tolled, and all deadlines associated with arbitration fees deferred, from the commencement of the Informal Resolution Period through the date when suit or arbitration may be filed under these Terms.
3. Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property rights of either party, including any disputes in which you or we seek injunctive or other equitable relief for the alleged unlawful use of your or our intellectual property (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Subsection (b) must be resolved by a neutral arbitrator through final and binding arbitration rather than in court. Claims subject to binding arbitration include, without limitation, disputes arising out of or relating to the interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of this arbitration provision or any portion of it.
4. Binding Individual Arbitration. Except as otherwise expressly permitted by this Section, any Claim may be resolved only through binding individual arbitration conducted by the American Arbitration Association (the “AAA”), https://adr.org/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). If you are a “Consumer,” meaning that you only use our Products or the Site for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules, as modified by these Terms (the “Rules”), will apply to Claims between the parties. If you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, as modified by these Terms, will apply to Claims between the parties. These Terms affect interstate commerce, and the enforceability of this Section will be substantively and procedurally governed by the FAA to the maximum extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. As allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or us to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
5. Arbitration Procedure and Location. Either party may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing an Arbitration Demand with AAA in accordance with the Rules. Instructions for filing a demand with AAA are available on the AAA website. You will send a copy of any demand for arbitration to us by certified mail addressed to National Restaurant Association Solutions, LLC, Attention: SVP Product Sales, 233 S. Wacker Drive, Suite 3600, Chicago, IL 60606-6383, USA, with a copy to National Restaurant Association, Attention: General Counsel, 2055 L Street NW, Suite 700, Washington, DC 20036, USA and to legal@restaurant.org. We will send any demand for arbitration to you by certified mail or, if no physical address has been provided, by email using the contact information you have provided to us. The arbitration will be conducted by a single arbitrator in the English language. The parties both agree that the arbitrator will be bound by these Terms.
   
   For Claims in which the Claimant seeks less than USD $10,000, the arbitrator will decide the matter based solely on written submissions, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the Claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is determined to be necessary, the site of any in-person hearing will be determined by the applicable Rules. The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless the parties agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
6. Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
7. Frivolous or Improper Claims. To the extent permitted by applicable law, a Claimant must pay all costs incurred by the defending party, including any attorney’s fees and arbitration fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument, (ii) the factual contentions for the Claim lacked evidentiary support when filed or were unlikely to have evidentiary support after a reasonable opportunity for further investigation, or (iii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
8. Confidentiality. If either party files a Claim in arbitration, that party agrees to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery in the arbitration. The parties agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
9. Mass Disputes. If twenty-five (25) or more Claimant Notices are received by a party or parties that raise the same or similar Claims and have the same or coordinated counsel or law firms, these will be considered a “Mass Dispute” and the provisions of this Subsection(i) will apply to all such Claimant Notices. A Claimant Notice provided as part of a Mass Dispute may proceed to arbitration only as set forth below.
   1. Applicable Rules. Any Arbitration Demands based on these Claimant Notices filed in arbitration will be subject to the AAA’s then-current Mass Arbitration Supplementary Rules, as modified by these Terms. Any disputes over whether an Arbitration Demand should be considered part of the Mass Dispute will be decided by the AAA as an administrative matter. The following procedures are intended to supplement the AAA’s Mass Arbitration Supplementary Rules, and to the extent the procedures conflict with those Rules, to supersede them.
   2. Initial Arbitrations. The parties will identify an initial set of 20 Claimant Notices (“Initial Arbitrations”) to proceed as Arbitration Demands in order to maximize efficiencies in the management, investigation, and arbitration of the remaining Claimant Notices in the Mass Dispute. The initial set will be selected as follows. Counsel representing the Claimants in a Mass Dispute must notify the other party in writing (email will suffice) when all or substantially all Claimant Notices for the Mass Dispute have been provided. Counsel for all Claimants and counsel for the responding party each will then select 20 Claimant Notices to proceed as Arbitration Demands. Claimants will then file Arbitration Demands for the 20 selected Claimant Notices. No Claimant Notice or Arbitration Demand may be filed or deemed filed, and no related arbitration fees may be assessed, until the Claimant Notice is selected to proceed to arbitration following the process set forth in this Section. A single arbitrator will preside over all Arbitration Demands included in the Initial Arbitrations, deciding each Arbitration Demand separately, unless the parties agree otherwise.
   3. Mediation. Upon conclusion of the 20 Initial Arbitrations (or sooner if the parties agree) and before proceeding with any other Arbitration Demands, the parties must engage in a single mediation applicable to all Claimant Notices in the Mass Dispute. The parties will have thirty (30) days following the conclusion of the last of the Initial Arbitrations to agree on a mediator. If they are unable to do so, the AAA may appoint one as an administrative matter. No additional Arbitration Demands may be filed until thirty (30) days after such mediation concludes or ninety (90) days after the appointment of a mediator, whichever is sooner.
   4. Second Batch. If mediation concludes with unresolved Claimant Notices, a second batch of 20 Claimant Notices (or all remaining Claimant Notices if the remaining number is less than 20 will proceed as Arbitration Demands, and the parties will select, file, and arbitrate such Claimant Notices in the same manner as the Initial Arbitrations described in clause (ii) of this Subsection (i).
   5. Remaining Claimant Notices and Arbitrations. If, following completion of the second batch of Arbitration Demands described above in clause (iv) of this Subsection (i), 100 or more Claimant Notices remain unresolved, any remaining Claimant or the receiving party to a remaining Claimant Notice may opt out of arbitration of all Claimant Notices that were not resolved in arbitration or mediation. Such an election may only be for all Claimant Notices remaining in the Mass Dispute, not a portion thereof. To be effective, such election must be communicated in writing (email suffices) to counsel for the other party within thirty (30) days of the conclusion of the last arbitration in the second batch. Claimant Notices released from the arbitration requirement must be resolved according to the Venue and Jurisdiction provision above. If complaints based on Claimant Notices that were released from the arbitration requirement are filed in court, then, to the fullest extent allowed by applicable law, such claims may be brought only on an individual basis and not as a class action or any other class, collective, consolidated, or representative proceeding. If, following the conclusion of the last arbitration in the second batch, fewer than 100 Claimant Notices remain unresolved or if no timely election to opt out of arbitration is made, the AAA will randomly select 40 Claimant Notices (or the total remaining if less than 40) that comply with Subsection (b) above to proceed in arbitration in the same manner as described in clause (ii) of this Subsection (i) above. Once such arbitrations have concluded, the parties will repeat this process until all Claimant Notices in the Mass Dispute have been resolved.
10. Opting Out of Arbitration. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted a version of these Terms by emailing legal@restaurant.org. To be effective, the opt-out notice must be on your own behalf and include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the Venue and Jurisdiction provision above.
11. Rejection of Modifications to this Section. You may reject any change we make to this Section (except changes to addresses at which notice must be given under this Section) as to you, by emailing legal@restaurant.org within thirty (30) days of the date of the change. To be effective, you must send the notice or rejection on your own behalf, and you must include your full name, mailing address, and email address. The notice must clearly indicate your intent to reject changes to Section. You may reject changes to Section only as a whole. You may not reject only certain changes to Section. If you reject changes to Section, the most recent version of Section that you have not rejected will continue to apply.
12. Two Years to Assert Claims. To the extent permitted by law, any Claim by you or Company against the other must be included in a Claimant Notice within the lesser of two (2) years after such Claim arises or the applicable statute of limitations; otherwise, the Claim is permanently barred, which means that you or we will no longer have the right to assert that Claim.
13. Severability. If any portion of this Section is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section; and (iii) to the extent that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section will be enforceable.

Terms of Sale for Physical Goods

• Return Authorization Number. You must contact Customer Care, who will provide you with a Return Authorization Number specific to the material you wish to return. You may contact Customer Care Monday through Friday, from 8:00am - 6:30pm, Central Time, by calling the following number: 800-765-2122 ext. 6703. If your return is authorized, your Customer Care representative will provide you with a Return Authorization Number.
• Packing Requirements. You must include your Return Authorization Number on the outside of any box containing a return that you send to us. If your return consists of multiple boxes, you must include the Return Authorization Number on the outside of each box, label the boxes to indicate how many total boxes there are (e.g. “1 of 2,” and “2 of 2” for two boxes), if you are sending multiple boxes, and include a copy of the original invoice or packing slip in the first box of your return. If possible, please ship them in their original packing.
• Refunds. Any credit you receive for a return will not include the shipping and handling fees associated with your original purchase. Refunds (less the shipping and handling fees described herein, and any other fees noted herein) will issue to your original form of payment. If your original form of payment is a check, credit will apply to original order number, and credit will remain on account. Customer must email a request to accountsreceivable@restaurant.org requesting a refund. Customer must provide preferred mailing address to receive a refund check. Credit Card refunds will issue to original card account at time of purchase. Credit Card refunds may take up to 10 business days for some payment providers to complete a refund transaction. Refunds are processed within 4-6 weeks.
•  Shipping Fees and Address. You are required to ship any goods you wish to return to the address specified by your Customer Care agent. If you return your goods to a different address, a $25.00 processing fee will be charged to your account, and your credit may be delayed.
• Traceable Shipments. You are responsible for shipping the goods back to us. For your own protection, please return product by traceable means (e.g., Federal Express, UPS, RPS, or Insured/Certified First Class Mail). Unfortunately, if we cannot trace a package sent to our warehouse, we will not be able to issue a credit.
• Condition of Returned Goods. Once we receive a return, if we determine that the goods have been used, damaged, are missing components, or are not in resalable condition, we will return them to you at your expense without issuing a credit or a refund. Please note that CDs and DVDs must be returned unopened.
• Call Tags. We will only issue a call tag if we commit a fulfillment error. No other call tags will be placed.
• Questions. For any questions regarding returns or refunds, please contact Customer Care.

License Terms