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Effective date: August 1, 2022
The following terms and conditions (“Terms & Conditions”) govern participation in Derby Rewards, Brown Derby’s loyalty program (“Program”). Please read the Terms and Conditions carefully. If you require clarification or further information, you may contact Customer Service at firstname.lastname@example.org.
By participating in the Program after the Effective Date, you agree to be subject to and comply with the following Terms and Conditions at all times:
A. The Program is offered and sponsored by participating Brown Derby stores (each a “Participating Store”) in the state of Missouri (“Participating State”). These Participating Stores are subject to change at any time, without notice. Consult individual store listings at BrownDerby.com to determine participation. If a store ceases to be a Participating Store, no purchase made at that store after the date the store has ceased participation will be eligible to receive Points, as described further below in Section III.
B. Program membership and its benefits, if any, are offered at the sole discretion of Participating Stores.
C. The Program replaces all loyalty programs offered in each of Participating Stores prior to the Effective Date referenced above. The Terms and Conditions set forth herein supersede all prior program terms and conditions.
D. In its sole discretion, a Participating Store may add, modify, delete, or otherwise change these Terms and Conditions, and any of the rules, procedures, conditions, Points (defined below), Perks (defined below) or Membership Status (described below) or requirements pertaining to the Program, with or without notice and even though such changes may affect the value of Points already accumulated or how Points may be received, valued, or redeemed.
E. The Terms and Conditions shall be governed by and construed in accordance with the laws of the state of Missouri, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of any other state laws. Applicants for enrollment, Members and Brown Derby agree to resolve any disputes over the Program in the state courts of Missouri and irrevocably waived any right to a jury trial.
2. PROGRAM PARTICIPATION
Only legal residents of the United States who are (a) at least 21 years of age and (b) use the Program for personal (not commercial or business purposes) are eligible to enroll as a Member in the Program (“Eligible Person”).
An Eligible Person may enroll by requesting membership and providing his or her first name, last name, personal telephone number, email address, and marketing permissions at a Participating Store at the checkout stand, or by enrolling online at brownderby.com/derby-rewards/sign-up/.
Eligible Persons may apply for and receive only one membership per person, and per phone number and email address.
Enrollment is not effective until enrollment has been accepted and activated by the Participating Store. If a Member is determined to be ineligible after enrollment, the membership will be terminated immediately, and no compensation, Points (defined below) or benefits will be paid or due or redeemable.
Eligibility in the Program is void where prohibited by law in any county, or local jurisdiction where the applicant or Participating Store is domiciled.
Program membership entitles Members to receive Derby Rewards Points (“Points”) (defined below), which shall serve as the basis for offers, discounts and other benefits, privileges, or opportunities identified from time to time by the Participating Store that are made available to Members (collectively, “Perks”). Perks may vary by state, county, or local jurisdiction of residence.
Membership in the Program is voluntary and free. No purchase is necessary to become a Member.
The Program is for personal use by natural persons only. Commercial customers and others purchasing items for resale are not eligible for membership. Any Member’s account deemed to be used for business purposes may be revoked at the Participating Store’s sole discretion. In the event of a Member’s death, the Member’s account will be closed and all Points, Perks and other benefits forfeited.
Each Member may only have one membership per person, and per phone number and email address.
Members may not transfer Points or Perks between Program accounts and cannot combine Points or Perks from accounts for redemption, Membership Status, or any other purpose.
In the event of a dispute over ownership of the Program account, the account will belong to the authorized account holder of the email address submitted at the time of enrollment. For purposes of these Terms, the “authorized account holder” for the email address is the natural person who is over the age of 21 and is assigned to the submitted email address by an internet provider, online service provider, or other organization (e.g., business, educational institution, etc.) that is responsible for assigning email addresses for the domain associated with the submitted email address. If no email address is associated with the Program account, the registration will belong to the authorized account holder of the phone number submitted at the time of enrollment. The “authorized account holder” for the phone number is the natural person who is over the age of 21 and is assigned to the phone number by a telecommunications service provider or other organization that is responsible for assigning phone numbers associated with the submitted phone number.
A Member may visit brownderby.com/derby-rewards/sign-up/ to create an online profile so the Member can manage the Member’s Program account and access online benefits of the Program. Where a Member creates an online account, the Member is responsible for creating private account access information for Member’s account and for maintaining the security of that information. If the security of the Member’s online account is breached, the Participating Store shall not be liable for any unauthorized access to the account, or accumulation or redemption of Points or Perks, or other account activity that occurs as a result of the unauthorized access or use, and in no event shall the Participating Store be responsible for reimbursing Member for any Points or Perks used by unauthorized persons, or other damages or losses claimed to occur as a result of that unauthorized access.
If a Member becomes aware of any fraudulent activity, including unauthorized use of a Member account or benefits, Member must report the fraudulent activity to Brown Derby at email@example.com, as soon as possible but no later than five (5) calendar days after Member’s discovery of the fraudulent activity or misuse.
Members who do not make any eligible purchases or do not associate their Program accounts with any eligible purchase for 12 months are subject to deactivation and cancelation of accumulated Points, Perks and/or Membership Status, in the sole discretion of the Participating Store. Perks cannot be redeemed by the Member after the account has been deactivated. After deactivation, a Member is eligible, in the discretion of the Participating Store, to open a new account or participate in the Program using Points, Perks, or Membership Status received from the de-activated account.
By joining in the Program, Members agree to receive mail, email and phone communications including, but not limited to, information about Member’s account and the Program, and commercial email and direct mail from any Brown Derby store. If a Member no longer wishes to receive communications via email or direct mail, please unsubscribe by clicking “unsubscribe” at the bottom of any email or email Customer Service at firstname.lastname@example.org.
The Participating Store may, but is not required to, send correspondence to active Members to remind them of the Program’s Terms and Conditions, available Perks, or the expiration of Points or Perks at the end of the Program Calendar Year (defined below). The Participating Store shall not be liable for any failure to do so, or for any incorrect, inaccurate or failed communication with a Member, whatever the cause.
Member is responsible for maintaining Member’s current contact information and updating Member’s account profile through the online platform or via Customer Service.
For information about an individual account or any other Program-related questions, contact email@example.com. Please include the Member’s name, Rewards Member number, daytime telephone number and/or email address.
C. Termination or Discontinuance of Program or Membership
A Member may cancel his or her Membership at any time by contacting Customer Service at firstname.lastname@example.org, seven days of the week, during business hours.
The Program has no predetermined termination date and may continue until any Participating Store decides to terminate the Program in that location, which may occur at any time, for any or no reason, and with or without notice to a Member. In the event of such termination and unless prohibited by law, Members shall have thirty (30) days from the Program’s termination to redeem any received Points (as defined below), Perks, or other benefits.
The Participating Store reserves the right, in its sole discretion, to discontinue membership for any Member who:
uses the Program in any manner inconsistent with the Terms and Conditions;
violates or acts in any manner that is inconsistent with federal, state or local laws;
engages in any form of fraud, theft, misconduct, or dishonesty in connection with the Member’s account, any other Member’s account, or accumulation of Points or Perks;
is abusive, disruptive, inappropriate, or hostile conduct toward any employee, representative or customer of a Participating Store or any other business operating as Brown Derby, or any Program Member; or
fails to pay for any purchase at any Participating Store, or other business operating as Brown Derby.
In Participating Store’s sole discretion, such discontinued membership may result in the loss of all accumulated Points, and the cancellation of Member Status received and/or any Perks.
3. ACCRUAL OF POINTS
A. Only purchases made in the Participating Stores are eligible to receive Points under the Program.
B. If a store ceases to be a Participating Store, no purchase made at that store after the date the store has ceased participation will be eligible to receive Points.
C. Accrued Points and Perks are not the property of the Member. Points and Perks are not transferable by Members for any reason or by operation of law.
D. Points and Perks received by a Member may not be sold, auctioned, bartered, brokered, purchased, or otherwise transferred. If a Participating Store determines, in its sole discretion, that any Points or Perks have been obtained in that manner, the Points and Perks will be deemed to have been fraudulently obtained and, therefore, immediately void. The Membership of any Member attempting to cause any such sale, auction, barter, brokerage, purchase, or transfer may be terminated.
E. To receive Points, a Member must make a qualified purchase in person at a Participating Store or online (for shipping, delivery or in-store pickup) from a Participating Store and meet all of the conditions described herein.
F. Points will appear on receipt but are not officially added to the system until the end of the business day.
G. Points are calculated on a per-item basis.
H. All Point values are awarded based on the pre-tax value of the items purchased, including both the dollars and cents spent, and after any discounts have been applied. All Point values are rounded up to the nearest whole number.
I. Which items are eligible for Points may vary between Participating Stores.
J. A Member will receive 10 Points for each one (1) dollar spent on all eligible items that are part of a qualified purchased made in-store or online (for shipping, delivery or in-store pickup, as applicable) at a Participating Store (“Base Points”), provided that the Member supplies his/her membership number to the Participating Store employee or logs into his or her Rewards Member account before the payment for the eligible charges is tendered.
K. From time to time, Participating Stores may offer Members promotional “Bonus Point Promotions” that result in an award of extra Points (“Bonus Points”) awarded depending on the Rewards Member Status, described in Section V.E.1.b. Such Bonus Point Promotions are also subject to any other terms set forth in the promotional offer.
L. If a Member fails to associate his/her Rewards Membership number with eligible charges before the time that payment is tendered, no Points will be received on the purchase. However, if payment has been tendered, Members can request to associate their prior in-store purchases to their Rewards account by emailing the recent purchase receipt to email@example.com. This only applies if the Member was already enrolled in the Program at the time the eligible charges were incurred and Member has receipt details.
M. Points can be received on the purchase of gift cards purchased from Participating Stores or the Brown Derby website. However, when a gift card is used to pay for eligible purchases, no additional Points will be received. For transactions where the total value of eligible purchases exceeds the remaining balance of the gift card, Members can receive a pro-rated amount of Points based on the amount of non-gift card tender (e.g. cash, credit card, or check) paid for eligible purchases.
N. No Points will be received for:
deposits (e.g. keg, tab, tub);
bottle, can, or container deposits
recyclable paper bags
items purchased using a gift card as the only form of tender; or,
where a Member has only reserved an item but not paid for it.
O. All receipts should be retained by the Member until the Point credit has appeared on his or her Rewards account statement. If a Member believes the correct amount of Points for eligible charges was not received, the Member must submit a written request for a Points adjustment to Customer Care, together with a legible copy of the Member’s receipt, and Member’s name, account number, mailing address, email address, and daytime telephone number. The information should be sent to firstname.lastname@example.org. Failure to supply the adequate and unaltered documentation may result in denial of such Point credit. Requests must be received by Customer Service within six (6) months from the date the eligible charges were incurred to receive consideration.
P. If a Member returns a purchase made with the Member’s Rewards account, the Participating Store will deduct the Points that the Member was awarded for that purchase, potentially resulting in a negative Point balance on the Member account.
4. USE OF POINTS & REWARDS
A. Points have no cash value. Points are only used to determine a Member’s qualification for different Reward Tiers (Enthusiast, Collector, Connoisseur, Curator), and as a means to determine the offers that a Member may qualify for, if any.
B. Offers generally are issued in the form of Rewards that may be redeemed in Participating Stores. The amounts and frequency of offers are determined at the sole discretion of the Participating Store and can be changed at any time.
C. Points received under any loyalty program offered by the Participating Stores prior to the Effective Date may be used to determine a Member’s Membership Status under the Program as of the Effective Date. See Section VI, below.
D. Rewards received under the Program:
Are valid only in Participating Stores.
Are valid-one time only;
Are valid for either 14 days from date of issuance or as specified on the Rewards Certificate or Coupon itself; and
May not be combined with other discounts or promotional offers/retail Certificates or Coupons, unless otherwise specified in writing by the Participating Store;
Cannot be retroactively applied to previous purchases;
Have no cash or monetary value;
Are not redeemable for cash, and no change will be provided where the Rewards Certificate or Coupon exceeds the value of the purchase.
Cannot be used on the purchase of a gift card, events, classes, tastings, bottle deposits, cigar boxes, ice, keg and tap deposits, and tap and tub rental fees.
Will not be replaced, reissued, or credited if lost, stolen, or otherwise destroyed;
Are void where copied, fraudulently obtained or transferred, derived from Points fraudulently obtained or transferred, prohibited, or restricted by law;
Are not exchangeable; and
Are subject to the redemption terms and procedures specified on the Rewards itself.
5. REWARDS MEMBER STATUS & PERKS
A. The Program has four Membership Status levels:
Enthusiast Status, which is available to all Members upon enrollment in the Program.
Collector Status, which requires accumulation of 5000 Points within a Program Calendar Year.
Connoisseur Status, which requires accumulation of 15,000 Points within a Program Calendar Year.
Curator Status, which requires accumulation of 25,000 Points within a Program Calendar Year.
B. Perks available to a Member are based on a Member’s Status.
C. The inaugural year for the Rewards Program will be from August, 2022 through January 31, 2023. Then the Rewards Program Calendar Year will be for a 12 month period and starts on January 1 and ends on December 31 of the same calendar year. For example, a Program Calendar Year started on January 1, 2024 and will end on December 31, 2024.
D. All Point balances will be return to zero on January 1 with the start of a new Program Calendar Year.
E. Once a Member has reached a certain Status, the Member is eligible to receive the benefits associated with that Status from the time the Status is achieved through December 31 of the next Program Calendar Year. If the Member fails to achieve at least the same Status during the next Program Calendar Year, the Member will revert to the next-closest subordinate Status at the conclusion of the next Program Calendar year. For example, if for Program Calendar Year 2023, a Member earns Curator Status by August 1, 2023, then the Member is eligible for Curator Status through Program Calendar Year 2024 (i.e., until December 31, 2024). However, if the Member does not receive enough Points to re-qualify for Curator Status during Program Calendar Year 2024, then the Member will revert back to Connoisseur, Collector or Enthusiast status (as applicable) Status on January 1, 2025.
F. Perks are available to Members of the Program based upon the Membership Status achieved. These Perks are offered solely at the discretion of the Participating Store. Not all Perks are available to all Members or at all Participating Stores, and therefore may vary from store to store, and from Member to Member. Current Rewards Perks include:
6. PERKS AVAILABLE TO ALL MEMBERS
a. Rewards. Enthusiast, Collector, Connoisseur, and Curator Members are eligible to receive 10 Rewards Points for each $1.00 on eligible purchases.
b. Ten (10) dollar in-store credit for every 2,500 points earned.
c. One (1) free dessert coupon at the Derby Deli for Members who have provided their birth date.
d. Purchase History. Members will have the ability to review their purchases and point awards electronically.
e. Advanced Notice. These notices are scheduled email distributions directed to “opt in” customers. They include notice of special pricing & offers.
f. Event Discounts: Unless prohibited by law, Members will receive email invitations for discounts on the cost of certain events. Offer valid for two (2) tickets per event. Offer valid on cost of certain events offered at Participating Stores. To qualify for these offers, Member must have a valid email address in Program Membership profile and be subscribed to receive emails regarding the Program. The frequency of these offers, value, and quantity of them can be changed at any time and will vary, depending on state/locality of residence, preferred store selection, and availability.
g. Military Benefits - 2x points on Derby Direct products.
2. Collector: In addition to the Perks described above, Collector Status Members are also eligible to receive the following Perks:
Bonus Point Promotions: During Bonus Point Promotions, there will be periodic promotions awarding 2x, 3x, or more for the purchase of specific products.
Derby Gift: Members will receive a gift when achieving Collector Status.
Connoisseur. Connoisseur Status Members eligible to receive the same Perks as a Collector Member, except as modified below:
Curator. Curator Status Members are eligible to receive the same Perks as a Connoisseur Member, except as modified below:
7. PRIVACY INFORMATION
A. IF YOU DO NOT AGREE TO THE TERMS SET FORTH IN SECTION VI, YOU SHOULD NOT JOIN THE PROGRAM.
C. By participating in the Program, you agree that Participating Stores, their affiliates and their vendors may collect, process and/or use information from and about you, and Participating Stores and their affiliates may share your personal information for purpose of administering the Program and other business purposes, including updating and enhancing the quality and content of the Program and information we maintain about you, and selecting, stocking, pricing and marketing store merchandise.
D. By enrolling, you also consent that Participating Stores, their affiliates and their vendors may transfer your information to information processing or storage facilities located outside of the United States, where data protection laws may differ from those of the United States.
E. As a Member, you authorize us to send you periodic communications by email or phone. You may discontinue receiving communications from us by logging onto your account online and managing your subscriptions, or by contacting us at email@example.com.
8. ADDITIONAL CONDITIONS OF PARTICIPATION
A. Participating Stores reserve the right to interpret and apply the policies and procedures communicated in these Terms and Conditions. All determinations by Participating Stores shall be final and conclusive in each case.
B. Participating Stores, and any parent, subsidiaries or affiliated entities, and each of their respective officers, directors, employees, and agents (the “Released Parties”), make no warranty, express or implied, including, but not limited to, any warranties of merchantability or fitness for a particular purpose with respect to the Program, membership in the Program, or any products or services related to the Program. BY PARTICIPATING IN THE PROGRAM, EACH MEMBER HEREBY RELEASES THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND OTHER EXPENSES RELATING TO THAT MEMBER’S PARTICIPATION IN THE PROGRAM, USE OF DERBY REWARDS OR AGREEMENT TO THESE TERMS. THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, LIABILITIES, AND OTHER EXPENSES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR PARTICIPATION OR MEMBERSHIP IN THE PROGRAM, INCLUDING DAMAGES, LOSSES, LIABILITIES, AND OTHER EXPENSES ARISING OUT OF CHANGES TO OR TERMINATION OF THE PROGRAM. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES, LOSSES, LIABILITIES, AND OTHER EXPENSES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS ON THE RELEASED PARTIES’ LIABILITY SET FORTH HEREIN SHALL APPLY WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, OR WHETHER IN TORT, CIVIL LIABILITY BY WAY OF NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BY AGREEING TO THESE TERMS, YOU WILLINGLY AGREE THAT YOU HAVE RELINQUISHED YOUR RIGHT TO SEEK THESE DAMAGES FROM THE RELEASED PARTIES AND THAT THIS IS A REASONABLE ALLOCATION OF RISK.
C. Participating Stores can delay enforcing their rights under these Program Terms without losing them. In addition, our failure to exercise our rights on any one occasion, or even on more than one occasion, does not constitute a waiver of our rights for any future occasion. All waivers must be in writing.
9. INDIVIDUAL ARBITRATION OF DISPUTES; JURY TRIAL WAIVER
A. THIS SECTION LIMITS CERTAIN RIGHTS THAT ANY MEMBER AND PARTICIPATING STORES MIGHT HAVE, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY (EXCEPT AS PROVIDED IN JAMS RULES REFERENCED BELOW), AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT MEMBER AND PARTICIPATING STORES WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
B. Member and Participating Stores agree that they will resolve any disputes regarding the Program through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between Member and Participating Stores relating to the Program or this Agreement (each a “Claim”) shall be submitted for binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of the agreement to arbitrate. Arbitration shall be initiated through JAMS, Inc. (formerly Judicial Arbitration and Mediation Services), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall select an alternative ADR Provider. The parties may also mutually agree on an alternative ADR provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The JAMS rules governing the arbitration are available online at www.jamsadr.com or by calling JAMS at 1-800-352-5267. The arbitration shall be conducted by a single, neutral arbitrator. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
C. If Member demonstrates that the costs of arbitration will be prohibitive as compared to the costs of litigation, Participating Stores will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. However, Participating Stores will not pay Member’s share of the arbitration fees if the arbitrator finds that either Member’s claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
D. This arbitration agreement does not preclude any Member from filing any complaint before any federal, state, or local government agencies with jurisdiction over such disputes. Member and Participating Stores also have the right to bring qualifying claims in small claims court. In addition, Member and Participating Stores retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
E. NEITHER MEMBER NOR PARTICIPATING STORES MAY ACT AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY CLAIM. CLAIMS MAY NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS. The arbitrator can decide only Member and Participating Stores’ individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
F. If any provision of this Section 8 is found to be invalid or unenforceable, except for subparagraph E, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 8 shall continue in full force and effect. No waiver of any provision of this Section 8 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. If subparagraph E is found to be invalid or unenforceable then neither Member nor Participating Stores shall be entitled to arbitration.
G. This Arbitration Provision shall survive termination of the Program or Member’s Program account.
H. If you do not want to be bound to this Arbitration Agreement, you must opt out of it within 30 days of it first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of these Terms and Conditions containing the Arbitration Agreement). To opt out of this Arbitration Agreement, you must send a letter or postcard to the address specified under Section 9, Notices, to the attention of the “Legal Department” and state that you do not want to be bound by this Arbitration Provision.
I. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court (including but not limited to in the event you opt out of arbitration pursuant to subparagraph H, the parties hereby agree to submit to the personal jurisdiction of the courts located in Greene County, Missouri, for such purpose.
10. NOTICES You may contact us by writing us at the address listed below:
Brown Derby, 2023 S. Glenstone Ave., Springfield, MO 65804