Website and Mobile App Privacy Policy

 

Last Revised: October 30, 2025

Residents of California, Virginia, Colorado, Connecticut, and Utah, please review our Supplemental Privacy Policy.

Table of Contents

Terms of Use

Thank you for using this service. These Terms of Use apply to the following websites, which are owned by the indicated entity.

Einstein Noah Restaurant Group, Inc. https://einsteinbros.com/
https://ebcatering.com/
https://orders.einsteinbros.com/join
https://orders.einsteinbros.com/giftcard
https://bagelbrands.com/
Bruegger’s Enterprises, Inc. https://brueggers.com
https://catering.brueggers.com
https://orders.brueggers.com/signup
https://orders.brueggers.com/giftcards
https://orders.brueggers.com/
Noah’s New York Bagels Company, Inc. https://noahs.com/
https://noahscatering.com/
https://orders.noahs.com/signup
https://orders.noahs.com/giftcards
https://orders.noahs.com/
Manhattan Bagel Company, Inc. https://www.manhattanbagel.com/
https://www.manhattanbagel.com/eclub/

We refer collectively to these entities as “Operator.” In addition to the listed websites, these Terms of Use also apply to any other Operator-owned platform on which they are posted, including Operator-owned mobile apps. These Terms of Use refer to the listed websites and all
other platforms on which they are posted as our “Sites.”


These Terms of Use are effective as of 1/16/15 (last updated October 30, 2025)

QUESTIONS ABOUT THESE TERMS OF USE


If you have any questions regarding these Terms of Use, please contact us and we will work with the owner of the website or mobile app at issue to answer your question:

Einstein Noah Restaurant Group, Inc.
1720 S. Bellaire St. Suite Skybox
Denver, CO 80222
Email: legal@bagelbrands.com

YOUR CONSENT TO THESE TERMS OF USE


By accessing or using one of our Sites, you are agreeing to comply with and be bound by these Terms of Use. If you do not agree to these Terms of Use, you may not use our Sites. Your use of one of our Sites indicates your acceptance of and agreement to all of these Terms of Use.

These Terms of Use include a class action waiver and a requirement that most disputes between you and us must be resolved in binding arbitration, and not in court. There is no judge or jury in arbitration and discovery and appellate rights are more limited in arbitration than in court. You have a time-limited right to opt out of this arbitration requirement. See the “Arbitration/Class Action Waiver” section below for details. Be sure to check these Terms of Use located at https://bagelbrands.com/terms-of-use periodically for updates, as your continued use of one of our Sites signifies your acceptance of changes we make to the Terms of Use (except we will not change the terms of arbitration once a dispute has arisen).

You agree that Operator may provide notices, disclosures, and amendments to these Terms of Use, and other information relating to the Operator by electronic means, including posting these materials online at https://bagelbrands.com/terms-of-use/.


YOUR CONSENT TO OUR ONLINE PRIVACY POLICY


Our online Privacy Policy (our “Privacy Policy”) describes how we protect your privacy when you use our Sites. To review our Privacy Policy click on the link marked “Privacy Policy” at the bottom of each page of our Sites. Our Privacy Policy is an integral part of and is incorporated into these Terms of Use.

YOUR CONSENT TO OTHER AGREEMENTS


When you sign up to use a special feature of our Sites, you may be asked to agree to special terms governing your use of the special feature. In such cases, you may be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked “I agree.” This type of agreement is known as a “click-through” agreement. If any of the terms of the click-through agreement are different than the terms of these Terms of Use, the terms of the click-through agreement will supplement or amend these Terms of Use, but only with respect to the matters governed by the “click-through agreement.”

THESE TERMS OF USE MAY CHANGE


We reserve the right to update or modify these Terms of Use, at any time and without prior notice, by posting the revised version on our Sites. These changes will be effective as of the date we post the revised version on our Sites. Your use of any one of our Sites following any such change constitutes your agreement to be bound by the revised Terms of Use.

To alert you to changes in these Terms of Use, we will provide a notice at the top of this page for at least 30 days after the new effective date. Unless the change is a minor change (such as a change in our contact information or in our list of Sites) or a non-substantive change (such as the reformatting of our Terms of Use), we will also post notices on our home pages and/or on the relevant pages of our Sites for 30 days after the new effective date to alert you to the change.

You may access the current version of these Terms of Use at any time by clicking on the link marked “Terms of Use” at the bottom of each page of our Sites.

OWNERSHIP, COPYRIGHT, AND TRADEMARK MATTERS


Our Sites, including the software and code that comprise and operate our Sites and all of the content of our Sites, for example, all of the text, images, illustrations, graphics, audio clips, and video clips published on our Sites, are protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. All of the rights in our Sites, including all of the rights in the content of our Sites, are owned by Operator, its subsidiaries, its franchisees, its or their licensors, and other third parties. The entire content of each Site is copyrighted as a collective work under U.S. and international copyright laws and treaties, and Operator or one of its subsidiaries owns the copyright in the selection, coordination, arrangement and enhancement of the content of each Site.

Individual users of our Sites are permitted to download copies of the information on our Sites for their own personal use. This limited, revocable privilege to use the content in no way constitutes a transfer of any right, title or interest in the material you download. You may not, under any circumstances, (a) modify the content of our Sites or use or exploit it for any commercial purpose, or for any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble the any part of our Sites or the content; or (c) remove any copyright, trademark registration, or other proprietary notices from the content. No material from our Sites may be copied, reproduced, republished, uploaded, posted, transmitted, distributed, exploited or used in any manner or form except as expressly provided above without first obtaining written permission from Operator or one of its subsidiaries. The use of any materials from our Sites on any other Web site or networked computer environment is prohibited.

The trademarks and service marks used or displayed on our Sites (“Trademarks”) are registered and unregistered trademarks of Operator, one of its subsidiaries, or third parties. Nothing on our Sites may be construed as granting – by implication, estoppel, or otherwise – any license or right to use any Trademarks displayed on the Site without the prior express written permission of Operator or the trademark owner. In particular, you may not use any trademark displayed on our Sites as a “hot” link without the prior written approval of the trademark owner.

RESPONSIBILITY FOR USER-GENERATED CONTENT POSTED ON OR THROUGH OUR SITES


In these Terms of Use, “User-Generated Content” or “UGC” refers to all of the content that you post on or through our Sites using the social networking tools we make available to you and that does not constitute Feedback.

You are responsible for UGC that you post: Under no circumstances will we be liable in any way for any UGC.

This means that you, not Operator, are entirely responsible for all UGC that you post and that you can be held personally liable for comments that are defamatory, obscene, or libelous, or that violate these Terms of Use, an obligation of confidentiality, or the rights of others. If any part of the UGC you post is not your original work, it is your responsibility to obtain any necessary permission to post it.

Because we do not control the UGC posted on or through our Sites, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing our Sites, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through our Sites. The UGC posted on or through our Sites expresses the personal opinions of the individuals who posted it and does not necessarily reflect the views of Operator or any person or entity associated with Operator.

You own UGC, but we may use it: You own the copyright in any original UGC you post. We do not claim any copyrights in UGC. However, by using our Sites you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain repurpose, and commercialize UGC you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas.

We may disclose and/or remove UGC: Operator has certain rights. We have the right (but do not assume the obligation) to:

• monitor all UGC;
• require that you avoid certain subjects;
• remove or block any UGC at any time without notice at our sole and absolute discretion;
• disclose any UGC and the identity of the user who posted it in response to a subpoena or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Operator or others, or to enforce these Terms of Use; and
• terminate your access to and use of our Sites, or to modify, edit or block your transmissions thereto in our sole discretion.

You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.

Restrictions on UGC: It is a condition of these Terms of Use that you do not:
• upload, post, transmit or otherwise make available any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
• any UGC that constitutes or encourages activity illegal under criminal or civil law;
• any UGC that is false, misleading, or fraudulent;
• any UGC that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• any UGC that violates or infringes upon the rights of others, including UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
• any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;
• any request for or solicitation of any personal or private information from any individual;
• any request for or solicitation of money, goods, or services for private gain;
• any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
• any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
• impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
• violate any local, state, national or international law, rule or regulation.
•
By posting UGC, you represent and warrant that (i) you own or otherwise control all of the rights to the UGC and have the right to grant the license set forth in these Terms of Use; (ii) the UGC is accurate, and (iii) you are at least eighteen years old and you have read and understood-and your UGC fully complies with-these Terms of Use and applicable laws and will not cause injury to any person or entity.

REMOVAL OF CONTENT


In general: On certain pages of our Sites, we may provide to you a tool to report objectionable User-Generated Content. If that tool is not available, you can report objectionable UGC by contacting us using the information provided above. While we do not have any obligation to remove UGC from our Sites merely because of a removal request, we will endeavor to review all such requests and will remove UGC that we determine should be removed, in our sole discretion and in accordance with these Terms of Use and applicable law. Please be aware, however, that if the UGC has already been distributed to other websites or published in other media, we will not be able to recapture and delete it. Also, a back-up or residual copy of the UGC we remove from our Sites may remain on back-up servers.

Violation of copyrights Operator does not knowingly violate or permit others to violate the copyrights of others. We will promptly remove or disable access to material that we know is infringing or if we become aware of circumstances from which infringing activity is apparent.

If you are requesting removal of content because of a violation of your copyrights, please note that the Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your own work, or the work of a third party for whom you are authorized to act, is featured on our Sites or has been otherwise copied and made available on our Sites in a manner that constitute copyright infringement, please notify us immediately. Your notice must be in writing and must include:
• an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest;
• a description of the copyrighted work that you claim has been infringed;
• a description of where the material that you claim is infringing is located on our Sites (including the URL, title and/or item number if applicable, or other identifying characteristics);
• your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner; and
• a written statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Your statement must be addressed to the Operator who owns the platform, as follows:
Copyright Department
Einstein Noah Restaurant Group, Inc.
1720 S. Bellaire St. Suite Skybox
Denver, CO 80222
Email: legal@bagelbrands.com

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.

ONLINE ORDERING


One or more Sites may provide you the ability to order online from participating locations for a particular restaurant brand (a “Brand”), which may include Operator-owned and franchisee-owned locations. Currently online ordering is only available for certain Operator-owned select locations. These Terms of Use apply to orders placed through any of our Sites, as such ordering is offered, if at all, from time to time. Ordering may not be available through all of an Operator’s Sites, or for all of a Brand’s locations, and not all participating locations sell all menu items. Images of menu items on a Site may not be identical to what is available or that you may receive from an individual restaurant.

You do not need to create a user account to place an order; however, each time you place an order from a Site, you must provide your contact information (including a valid email address) and valid payment information as such information is used only for the specific placed order and not for any subsequent orders.

Follow the instructions on a Site to place an order; provide all information required for order placement and payment. You are responsible for payment of your order by providing a valid credit card and related payment information at the time of placement of your order. An Operator (or its third party payment processor designee) will charge, and you authorize an Operator (or its third party payment processor designee) to charge, the credit card you provide at the time of placement of your order. An Operator uses third party providers, and may use and accept various third-party services to process payments; by making a payment, you agree to the terms and conditions of such providers and services. Upon payment for your order, you will receive an email sent to the designated email address you provided in connection with your order detailing your order information. By purchasing items through a Site, you represent and warrant that you are capable of entering into a contract under the applicable law.

The Brand restaurant identified when you place your order (which may be an Operator-owned or franchisee-owned location), is responsible for preparing and fulfilling your order and for any questions or other communications regarding your order. If you are purchasing from a franchisee-owned location, an Operator does not prepare the items you are purchasing from the franchisee and the franchisee (and not an Operator) remains responsible for all items that you purchase.

You understand that: (1) the prices for menu items displayed through the online ordering services on a Site may differ from the prices offered or published for the same menu items at a physical Brand restaurant or through other methods of ordering (for example, an Operator app), (2) the prices for menu items may differ depending on geography and the specific Brand restaurant within any geography, (3) the prices for menu items may differ depending on whether you order for dine-in or pick up, (4) the prices for menu items may differ depending on whether you order from an Operator-owned location, a franchisee-owned location, or through different methods of ordering, and (5) an Operator reserves the right to change the prices displayed through the online ordering services on a Site, and applicable fees or surcharges at any time. Prices for menu items do not include applicable taxes, fees (including service fees), or surcharges, which additional amounts will be added to the amount of your order prior to order placement and payment. Amounts paid for completed orders are final and non-refundable. An Operator and a franchisee has no obligation to provide refunds or credits, but may grant them, in its sole discretion.

Minimum order amounts may apply for orders placed through the online ordering services on a Site. Any applicable taxes, fees (including service fees), or other surcharges due in connection with your order will be identified on the checkout screen before you pay for your order. If you do not agree to the prices charged for the items listed or any other amounts (including fees, service fees or surcharges) identified on the checkout screen, do not proceed with payment. There may be limits on the dollar amounts and number of orders that may be placed through the online ordering services on a Site. Discounts, coupons, promotions and other offers may not be able to be used or combined for orders placed through the online ordering services on a Site.

In the event that a product that is available for ordering online through a Site is mistakenly listed at an incorrect price or with other incorrect information (including taxes, fees, service fees or surcharges), the applicable Brand restaurant at which the order is placed reserves the right to either refuse or cancel the order or to charge you the correct amount(s). A Brand restaurant reserves the right to refuse or cancel any orders for any reason (including for pricing errors as noted above), regardless of whether the order has been paid or confirmed. Neither an Operator or a franchisee is responsible for any inability to fulfill any order. If your credit card has been charged for the purchase and your order is cancelled by a Brand restaurant, you will be issued a credit to your credit card in the amount charged.

You understand that third parties unrelated to a Brand may offer online ordering and/or delivery services through their own websites, apps or other means. Operators and franchisees do not review and are not responsible for any statements, claims (including price representations) made on those third party sites or apps and have no responsibility to you for an order or payment made through a third party. Any issue with or complaint regarding any of these third party services or orders placed through them should be directed to that service and not to a Brand restaurant, Operator or franchisee.

MOBILE TERMS AND CONDITIONS


If you have consented to receive text message communications from Einstein Noah Restaurant Group, Inc., Bruegger’s Enterprises, Inc., Noah’s New York Bagels Company, Inc., and Manhattan Bagel Company, Inc. and their subsidiaries, affiliates, agents, and independent contractors (collectively, “Bagel Brands”), these mobile terms and conditions apply to you.

If you have consented, you will receive text messages from or on behalf of Bagel Brands to the mobile telephone number you have provided at opt-in or registration about Bagel Brand products and services (the “Texting Program”). These text messages will include the types of communications described in the Texting Program terms, which will be about Bagel Brands products and offerings, including but not limited to, marketing of goods and services that may be of interest to you, surveys regarding your experiences or preferences, updates regarding orders or deliveries, program sign-up information, and educational notifications (the “Messages”). These text messages may be delivered in a variety of formats (including video).

The number of text messages you receive as part of the Texting Program will vary in frequency, but the text messages will continue on a recurring basis for the length of the Texting Program unless you opt-out prior to the end of the Texting Program.

By consenting, you authorize Bagel Brands to deliver or cause to be delivered the Messages using automated technology, which may include an automatic telephone dialing system. You are not required to consent to receive the Messages as a condition of purchasing any property, goods, or services.

You can opt out of receiving further texts from the Texting Program by replying “STOP,” “END,” “CANCEL,” “UNSUBSCRIBE,” or “QUIT” to any message from the Texting Program. You understand that you will, however, receive a response from Bagel Brands either confirming receipt of your request or seeking clarification of your request.

You can text “HELP” in response to any message from the Texting Program to receive help. You can also email us at guestservices@einsteinnoah.com or find us online at https://bagelbrands.com/.

There is no fee charged by Bagel Brands to receive Texting Program messages, but your mobile service provider’s message and data rates may apply. Please consult your mobile service provider for the terms and conditions under which charges are billed and payable or deducted from your prepaid account.

Personal information that may be collected from you as part of the Texting Program will be handled in accordance with the Website and Mobile App Privacy Policy provided to you at the time of the collection of your personal information.

Bagel Brands cannot guarantee the successful delivery of Texting Program messages. Factors beyond the control of Bagel Brands may impact message delivery, including equipment range and functionality, network capacity, terrain, proximity to buildings, foliage, and weather. Neither Bagel Brands nor your mobile service provider carrier will be held liable for delayed or undelivered messages.

The Texting Program may not be available on all US carriers.

YOUR FEEDBACK


In these Terms of Use, “Feedback” refers to the content you post on or through our Sites that is specifically about how we can improve our Sites and the products and services we make available through our Sites. Although we do not claim ownership of User-Generated Content you post on or through our Sites, the Feedback you provide to us will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

PASSWORD-PROTECTED AREAS OF OUR SITES


Certain areas of our Sites are password protected. You are responsible for maintaining the confidentiality of your passwords. We have the right to assume that anyone accessing our Sites using a password assigned to you has the right to do so. You will be solely responsible for the activities of anyone accessing our Sites using a password assigned to you, even if the individual is not, in fact authorized by you. You agree to notify us promptly at guestservices@einsteinnoah.com if you have reason to believe that your password may have been compromised or used without authorization.

FRANCHISE INFORMATION


Neither our Sites nor the franchise sales information on our Sites constitute an offer to sell a franchise. The offer of a franchise can only be made through the delivery of a franchise offering circular. Certain states require that we register the franchise offering circular in those states. The communications on our Sites are not directed by us to the residents of any of those states. Moreover, we will not offer or sell franchises in those states until we have registered the franchise (or obtained an applicable exemption from registration) and delivered the franchise offering circular to the prospective franchisee in compliance with applicable law.

DISCLAIMERS


OUR SITES, THEIR CONTENTS, AND ALL INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH OUR SITES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, OPERATOR, ITS SUBSIDIARIES, AND ITS FRANCHISEES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO OUR SITES, THEIR CONTENTS, AND THE INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THESE SITES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPERATOR, ITS SUBSIDIARIES AND ITS FRANCHISEES DISCLAIM ALL

REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (C) RELATING TO THE SECURITY OF THESE SITES; (D) THAT THE INFORMATION ON THESE SITES, INCLUDING MENUS AND PRICING INFORMATION, IS ACCURATE, COMPLETE OR CURRENT; OR (E) THAT THESE SITES WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO THIS ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY


UNDER NO CIRCUMSTANCES, SHALL OPERATOR, ITS SUBSIDIARIES, OR ITS FRANCHISEES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, LICENSORS OR SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OUR SITES, ANY CONTENT PUBLISHED ON OUR SITES, OR ANY INFORMATION, PRODUCTS OR SERVICES PROVIDED OR PURCHASED THROUGH OUR SITES.

THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF OPERATOR, ONE OF ITS SUBSIDIARIES, OR A FRANCHISEE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE EFFECTIVENESS OF OTHER REMEDIES.

IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OPERATOR, ITS SUBSIDIARIES, ITS FRANCHISEES (AND ANY OTHER PERSON OR ENTITY WHOSE LIABILITY WOULD OTHERWISE HAVE BEEN LIMITED) FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED FIVE DOLLARS ($5.00).

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO ALL OR PART OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.

LINKS TO SITES OPERATED BY THIRD PARTIES


Our Sites may provide links to websites operated by third parties. We are not responsible for examining or evaluating, and we do not warrant the products or offerings of, any of these businesses or individuals or the accuracy or content of their websites. We do not assume any responsibility or liability for the actions, product, and content of any such sites. Before you use any site you should review the applicable conditions of use and policies. The inclusion of a link in our Sites does not imply our endorsement of the site. If you decide to access linked third-party websites, you do so at your own risk.

INTERPRETATION


As used in these Terms of Use, the term “including” means “including, but not limited to.”

WAIVER


Our failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by any of us of any breach of any provision of these Terms of Use or of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

ARBITRATION/CLASS ACTION WAIVER


Please review this provision carefully. It provides that most “Disputes” between us must be resolved in binding, individual arbitration and not in court. Arbitration replaces the right to go to court and the right to have a judge or jury decide a dispute, and discovery procedures and appellate rights are more limited in arbitration than in court. “Individual” means that the arbitrator may award the same remedies to you or us as a court could, but only to satisfy your or our individual claims. To the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person other than you or us as part of the resolution of any Dispute. “Binding” means that both you and we will have to accept and follow the arbitrator’s decision, except to the limited extent appeals to a court are permitted under applicable law. The award entered by the arbitrator may be confirmed or enforced in any court having jurisdiction.


Meaning of “Disputes.” The term “Disputes” that must be arbitrated means any dispute, claim, or controversy (excluding only those exceptions listed below) between you and us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either of us seeks legal recourse. The term Disputes also includes disputes regarding the validity, enforceability, or scope of this agreement to arbitrate or any portion of it. In other words, if you believe this agreement is unenforceable against you for any reason or that a claim you are asserting should not be resolved in arbitration, the decision about this will be made by the arbitrator, not by a court, unless these Terms of Use expressly say otherwise. In this Arbitration provision, the words “we,” “us,” and “our” shall include each Operator and any assignees of any of an Operator’s rights, as well as an Operator’s and its assignees respective affiliates, parents, subsidiaries, franchisees, vendors, suppliers, and further assigns.


The exceptions to this arbitration requirement are: (a) claims that can be brought as individual actions in small-claims court; (b) pursuit of enforcement actions through a government agency if the law allows; (c) an action to compel or uphold any prior arbitration decision; (d) your or our right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (e) claims of intellectual property infringement; (f) claims that are the subject of a proposed class or collective action settlement in any court; (g) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis; and (h) certain roles expressly specified for courts in the terms below.


Time Limit to Pursue a Dispute.

To the fullest extent permitted by applicable law, you or we must start arbitration of a Dispute within one (1) year from when the Dispute first arose. If applicable law requires you or us to bring a claim for a Dispute sooner than one year after the Dispute first arose, that shorter deadline applies instead. The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that to the fullest extent permitted by applicable law, you or we will not have the right to assert the Dispute.


Arbitration Procedure and Location.

Any arbitration under this Arbitration provision shall be administered by National Arbitration and Mediation (“NAM”), https://namadr.com, according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Dispute arises (the “Rules”), as modified by these Terms. These Terms affect interstate commerce, and the enforceability of this section will be substantively and procedurally governed by the U.S. Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., and federal arbitration law.


The arbitration will be conducted by a single arbitrator selected pursuant to the Rules. You and we both agree that the arbitration will be conducted in the English language. The arbitrator will apply these Program Terms as a court would and will adjudicate any Disputes according to applicable law and fact based only upon the record before the arbitrator.


For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in the City and County of Denver, Colorado, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence.


The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and we 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.


To the fullest extent 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.


An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.


Arbitration Fees

The party initiating an arbitration must pay the claimant’s share of NAM’s initial filing fee. If you are a consumer as defined in the Rules, your share of the filing fee is less than the cost of initiating a dispute in many courts. Nevertheless, if your dispute is a consumer dispute and the initiation fee poses a hardship for you, we will consider your request that we pay the filing fee on your behalf. All other payments will be as directed by the Rules, which impose most costs on the Operator in consumer disputes. Either or both parties may elect to be represented by counsel in arbitration, but each party shall bear its own costs of attorneys, experts, and witness fees, subject to the prevailing party’s potential right to seek reimbursement of those fees if applicable law allows this.


Special Rules for Coordinated Filings

If 25 or more Disputes are initiated with the arbitrator
that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Cases.” We will pay only the Operator’s share of arbitration fees for Coordinated Cases; the claimants will be responsible for their share of those fees as set by the
Rules and NAM’s fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who have notified us of their Disputes beginning at the time of such notification, but demands for arbitration in Coordinated Cases shall only be filed with
NAM as permitted by the bellwether process set forth below, and we may not be required to pay any fees associated with cases that this agreement does not allow to be filed.


Once counsel for Coordinated Cases have notified us that they have provided notices of all or nearly all Disputes, counsel for claimants in the Coordinated Cases and counsel for us shall confer in good faith regarding the number of cases that should proceed as bellwethers, to allow each side to test the merits of its arguments, before the remainder of claims may be filed with the arbitration provider. Any number chosen must be an even number so as to allow each side to designate its half of the cases selected for bellwether trials. If counsel for claimants and for us do not agree on the number of bellwethers, the number shall be chosen by NAM as an administrative matter (or, in NAM’s discretion, by a process arbitrator). Factors that NAM may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various claims. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant notices of Dispute, and only those chosen claims may be filed with the arbitration provider. You agree that if your case is not among the Coordinated Cases chosen to be filed against us, resolution of your personal claim might be delayed by this bellwether process. Nothing in this paragraph shall be construed to delay the resolution of uncoordinated Disputes based on similar claims to Coordinated Cases filed against Operator(s).


A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.


Once all bellwether trials have concluded (or sooner if the counsel for the claimants in the Coordinated Cases and our counsel agree), the parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding by engaging in a single mediation of all remaining cases. Each side shall pay half the applicable mediation fee. Counsel for claimants in the Coordinated Cases and for Operator must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If our counsel and counsel for claimants in the Coordinated Cases cannot agree on a mediator within 30 days, NAM will appoint a mediator as an administrative matter. Our counsel and counsel for the claimants in the Coordinated Cases agree to cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.


If the mediation does not yield a global resolution, then claimants in Coordinated Cases who notified us of their Disputes but whose claims were not resolved in bellwether proceedings shall no longer have the right to arbitrate their Dispute. Instead, outstanding claims from such cases may be filed only in the state courts in the City and County of Denver, Colorado, or if federal jurisdiction exists, in the United States District Court for the State of Colorado, and you consent as part of these Terms to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Operator(s) from removing a case from state to federal court if removal is allowed under applicable law. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who notified us of their Disputes prior to the start of the bellwether process, and we reserve the right to contest class certification at any stage of the litigation and on any available basis.


If the parties to an arbitration disagree about whether cases are Coordinated Cases or regarding NAM’s compliance with the bellwether process, a court shall have authority to enforce the bellwether process. This includes the authority to enjoin the filing of lawsuits or arbitration demands not made in compliance with it.


Continuation in Effect

The dispute resolution process set forth in this agreement survives the termination of any other agreement between you and us.


Future Terms Changes

Although we may revise these dispute resolution terms in our discretion, we do not have the right to alter this agreement to arbitrate, or the arbitration rules or procedures specified herein, with respect to any Dispute once you have notified us of that Dispute, if such change would make arbitration procedures materially less favorable to you as the claimant. The question of whether a change to arbitration rules or procedures is materially less favorable to a claimant shall be decided by NAM as a process matter.


Your Time-Limited Right to Opt Out of the Arbitration Requirement

You have the right to opt out of and not to be bound by the binding individual arbitration provisions set forth in these Terms of Use (except for the class action waiver, which is not subject to an opt-out). To exercise this right, you must send written notice of your decision to the following address: Bruegger’s Rewards/Arbitration, c/o Bruegger’s Enterprises, Inc., 1720 S. Bellaire St. Suite Skybox, Denver, CO 80222, Rewards/Arbitration, c/o Einstein Noah Restaurant Group, Inc., 1720 S. Bellaire St. Suite Skybox, Denver, CO 80222, or Noah’s Rewards Program/Arbitration, c/o Noah’s New York Bagels Company, 1720 S. Bellaire St. Suite Skybox, Denver, CO 80222.


Your notice must include your name, mailing address, and email address associated with your account(s) with us, state that you do not wish to be bound by the Binding Individual Arbitration provisions set forth in these Terms, and sign the notice. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE, YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION. You are responsible for ensuring that we receive your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these provisions, we will not be bound by them with respect to disputes with you.


Class Action Waiver

To the maximum extent permitted by applicable law, disputes, claims, and controversies not subject to the requirement to arbitrate (including, but not limited to, claims filed in small claims court and claims that are deemed not subject to the requirement to arbitrate) may not be aggregated together in a class action, except that, as set forth above, if a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases. Otherwise, to the maximum extent permitted by applicable law, you and we will only bring disputes, claims, or controversies against each other in an individual capacity only and shall not:


• seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or


• consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these Terms.

 

Severability. If all or any provision of this agreement to arbitrate is found invalid, unenforceable, or illegal, then you and we agree that the provision will be severed, and the rest of this agreement to arbitrate shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, you and we agree that this entire agreement to arbitrate (but not the separate class action waiver) will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified herein.

Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use shall remain in full force and effect.

GOVERNING LAW, JURISDICTION AND VENUE


These Terms of Use shall be governed under the laws of the State of Colorado without regard to its conflicts of law provisions. All actions or proceedings arising out of or relating to these Terms of Use shall be venued exclusively in state or federal court in Denver, Colorado. You hereby irrevocably consents and submits to the personal jurisdiction of said courts for all such purposes.

ENTIRE AGREEMENT


These Terms of Use, together with our Privacy Policy and any applicable privacy notice or click-through agreement, contain the entire understanding and agreement between you and us with respect to our Sites and supersede all previous communications, negotiations and agreements, whether oral, written, or electronic between you and us with respect to our Sites.