Terms and Conditions

DISPUTE RESOLUTION (INCLUDING ARBITRATION AGREEMENT; CLASS ACTION WAIVER; JURY TRIAL WAIVER; GOVERNING LAW AND VENUE)

Arbitration Agreement

(a) General. Except as expressly provided below, you and Brinker (individually “Party,” and collectively “Parties”) agree that, to the fullest extent permitted by the Federal Arbitration Act, any dispute or claim arising out of or relating to these Terms, similar prior Terms, any products or Services you have been offered or received from Brinker, your access or use of the Online Services, any communications regarding or arising out of these Terms or Brinker’s services, or the relationship between you and Brinker (defined above), including existing disputes and those arising before your agreement to these Terms (collectively, “Claim”) will be resolved by individual arbitration with limited exceptions as set forth below. Claim shall be interpreted broadly and shall include disputes and claims based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Notwithstanding the foregoing, either you or we may elect to have a Claim heard in small claims court so long as it proceeds on an individual basis and is not removed or appealed to a court of general jurisdiction. Whether a Claim is within the jurisdictional limits of small claims court is for the small claims court to decide in the first instance, and otherwise for a court of competent jurisdiction to address. Notwithstanding the foregoing, claims or disagreements related to the violation or alleged violation of intellectual property rights (patents, copyrights, trademarks, and trade secrets) shall not be subject to arbitration. The arbitrator shall decide all issues EXCEPT the following, which are for a court of competent jurisdiction to decide: (i) issues that are reserved for a court in these Terms; (ii) issues that relate to the scope, validity, and enforceability of the arbitration agreement, class action waiver, jury trial waiver, or any of the provisions of the Dispute Resolution section; (iii) issues that relate to the arbitrability of any Claim; and (iv) any disagreement over which version of the Agreement applies to your Claim. You and Brinker agree that the Terms evidence a transaction in interstate commerce and that this arbitration agreement will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law (not state arbitration law).

The right and obligation to arbitrate under this section shall extend to all Claims, including, but not limited to, those against or involving third parties such as Brinker or its affiliates’ officers, directors, employees, agents, shareholders, members, partners, subsidiaries, joint venturers, or contractors as well as Claims against Brinker or its corporate affiliates and/or parents, all of which are intended beneficiaries of this Agreement.

(b) Proving an Enforceable Agreement. You and Brinker agree that the Party (whether you or Brinker) initiating any arbitration (individual or as part of a mass arbitration) (i) bears the evidentiary burden to prove by a preponderance of the evidence that an enforceable agreement to arbitrate exists between the Parties and (ii) meeting that burden is a contractually required condition precedent to initiating arbitration.

(c) Mandatory Pre-Dispute Resolution. Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, you and Brinker agree to the following informal pre-dispute resolution procedure before you or Brinker may initiate arbitration. In the event of a Claim between you and Brinker, the Party asserting the Claim must first send to the other a written notice of the Claim via email (delivery receipt requested), entitled “Notice of Intent to Arbitrate” (“Notice”). The Notice to Brinker should be addressed to: legalnotices@brinker.com. The Notice must include all of the following information: (i) accurate contact information (including name, address, email address, and telephone number); (ii) a detailed description of the nature and basis of the Claim; (iii) the specific relief sought with a good faith calculation for it; and (iv) information sufficient to identify any account or transaction at issue. The Notice must be personally signed by the Party asserting the Claim (and their counsel, if represented). For a period of 60 days from receipt of a Notice (which can be extended by agreement of the Parties), you and Brinker agree to work together in good faith in an effort to informally resolve the Claim. The Party receiving the Notice may request a telephone settlement conference to aid in the resolution of the Claim. If such a conference is requested, the Party asserting the Claim shall personally attend (with counsel, if represented). The conference will be scheduled for a mutually agreeable time, which may be outside of the 60-day period.

If you and Brinker do not reach an agreement to resolve the Claim within 60 days after the Notice is received, you or Brinker may commence an arbitration proceeding under these Terms. To the fullest extent permitted by applicable law, the failure to follow the Notice procedures outlined in this paragraph shall render any claim or action prematurely filed in court, arbitration, or another forum null, void, and subject to immediate dismissal; should a claim or action be prematurely filed, you agree to recommence the 60-day period beginning on the date the premature claim or action is dismissed. If the sufficiency of a Notice or compliance with this process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either Party’s election and any arbitration shall be stayed or closed. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of arbitrations and the assessment and collection of arbitration fees. Nothing in this provision limits the right of a Party to seek damages for non-compliance with this process in arbitration. All applicable limitations periods (including statutes of limitations) shall be tolled from the date of receipt of a Notice through the conclusion of this process. You and we agree that complying with this process is a condition precedent to filing a Claim against Brinker in arbitration, or for Brinker to file a Claim in arbitration against you. Failure to comply with this Mandatory Pre-Dispute Resolution process is a material breach of the Agreement and deprives an arbitration administrator of the authority to assess fees.

(d) Arbitration Procedures. The arbitration of any Claim shall be administered by and conducted in accordance with the then-current rules of JAMS, including the JAMS Streamlined Arbitration Rules and Procedures and any applicable Mass Arbitration Procedures and Guidelines (together “JAMS Rules”), as modified by these Terms. You and we agree that if JAMS is unable or unwilling to administer the arbitration consistent with this arbitration agreement, and the Parties cannot agree on an alternative provider (such as National Arbitration & Mediation, ADR Services, Inc., FedArb ADR, or the American Arbitration Association), then the Parties shall jointly petition a court of competent jurisdiction to appoint a provider or an arbitrator that will do so. The JAMS Rules are available at www.jamsadr.com/adr-rules-procedures. If you are submitting an arbitration demand, you shall send it to Brinker at legalnotices@brinker.com and follow the JAMS Rules for initiating arbitration. If Brinker is submitting an arbitration demand, we shall send it to the most recent contact information we have on file for you and will follow the JAMS Rules for initiating arbitration. An arbitration demand must be accompanied by a certification of compliance with the Mandatory Pre-Dispute Resolution process set forth above and be personally signed by the Party initiating arbitration (and their counsel, if represented). By submitting an arbitration demand, the Party and counsel represent that, as in federal court, they are complying with all of the requirements of Federal Rule of Civil Procedure 11(b). The arbitrator is authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented Parties and their counsel. The Parties will select a mutually agreeable single arbitrator. In the event that the Parties are unable to agree, the Parties shall select an arbitrator according to a “strike and rank” process. The arbitrator must have experience litigating and/or presiding over cases involving the substantive legal areas involved in the dispute or be a retired federal or state court judge. The arbitrator shall seek to have the arbitration resolved within 120 days of their appointment or as swiftly as possibly to ensure a fundamentally fair process. Dispositive motions shall be permitted in arbitration. Any Claim seeking $25,000 or more or injunctive relief shall have an in-person or video hearing unless the Parties agree otherwise. You and Brinker reserve the right to request a hearing in any matter from the arbitrator. You and a Brinker representative will personally appear at any hearing (with counsel, if represented). Any in-person hearing will take place in the county or parish where you reside or at another reasonably convenient location determined by the arbitrator. To the fullest extent permitted by applicable law, you and Brinker agree that each may bring claims against the other only in your or our individual capacity and not as a plaintiff or class member in any purported class, collective, private attorney general, or representative proceeding. Further, unless both you and we agree otherwise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class, collective, private attorney general, or representative proceeding. An arbitrator must follow and enforce this Agreement as a court would. If, after exhaustion of all appeals (or if the decision is otherwise final), any of these prohibitions on class, collective, private attorney general, or representative proceedings are found to be unenforceable with respect to a particular claim or request for relief (such as a request for public injunctive relief), then such claim or request for relief shall be decided by a court of competent jurisdiction after all other claims and requests for relief are arbitrated. The arbitrator shall issue a well-reasoned opinion sufficient to explain the essential findings and conclusions. The arbitrator shall apply the cost-shifting provisions of Federal Rule of Civil Procedure 68 after entry of an award. An award shall have no preclusive effect in any other arbitration or proceeding in which you are not a named Party.

(e) Costs of arbitration. Payment of arbitration fees will be governed by the JAMS Rules and fee schedule (or those of the otherwise applicable administrator as set forth above). You and Brinker agree that the Parties have a shared interest in reducing the costs and increasing the efficiencies associated with arbitration. Therefore, you or Brinker may elect to engage with JAMS regarding arbitration fees, and you and Brinker agree that the Parties (and counsel, if represented) will work together in good faith to ensure that arbitration remains cost-effective for all Parties.

(f) Additional Procedures for Mass Arbitration. You and Brinker agree that these Additional Procedures for Mass Arbitration shall also apply in the event that 25 or more substantially similar arbitration demands are filed against Brinker by the same or coordinated counsel (“Mass Arbitration”). You understand and agree that by choosing to participate in a mass arbitration, the resolution of your Claim might be delayed and ultimately proceed in court. You and we agree that as part of these procedures, a JAMS process administrator shall be appointed through a strike-and-rank process. In addition, you and we (and our respective counsel) shall meet and confer in good faith in an effort to resolve the Claims, streamline procedures, address the exchange of information, modify the number of Claims to proceed in any stage, mediate or otherwise discuss resolution of the Claims, and conserve the parties’ and JAMS’s resources. If you choose to bring your Claim as part of a Mass Arbitration, any applicable limitations periods (including statutes of limitations) shall be tolled for your Claim from the time your Claim is first submitted to JAMS until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision. If these procedures are triggered, then JAMS shall administer the arbitrations as follows, after any Process Administrator proceeding:

(i)          Stage One: If at least 50 Claims are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for Brinker shall each select 25 Claims to be filed and proceed as cases in individual arbitrations as part of this initial staged process. The number of Claims to be selected to proceed in Stage One can be modified by agreement of counsel for the parties (and if there are fewer than 50 Claims, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an arbitration award, another Claim shall be selected to proceed as part of Stage One. The remaining Claims shall not be filed or deemed filed nor shall any arbitration fees be assessed or collected in connection with those Claims. After this initial set of staged proceedings, counsel for the parties shall participate in a global mediation session with a mediator jointly selected by counsel for the parties in an effort to resolve the remaining Claims (as informed by the adjudication of cases in Stage One), and Brinker shall pay the mediator’s fee.

(ii)        Stage Two: If the remaining Claims have not been resolved at the conclusion of Stage One, the same staged process, set forth in Stage One shall be repeated for Staged Two with 50 total Claims proceeding in individual arbitrations except that arbitrators who presided over a case in Stage One may be appointed to preside over a Claim that proceeds in Stage Two. After this second set of staged proceedings, counsel for the parties shall participate in another global mediation session to try to resolve all of the remaining Claims, and Brinker shall again pay the mediator’s fee.

Upon completion of the mediation set forth in Stage Two, each remaining Claim (if any) that is not settled or withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of these Terms (including the remaining provisions of this Dispute Resolution section). Counsel for the parties may instead mutually agree in writing to proceed with the adjudication of some or all of the Claims in individual arbitration consistent with the process in Stage Two (except Claims would be randomly selected and mediation would be elective at the agreement of counsel for the parties). A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Arbitration, including the authority to enjoin the filing or prosecution of arbitrations. These Additional Procedures for Mass Arbitration are essential parts of this arbitration agreement. If, after exhaustion of all appeals (or if the decision is otherwise final), a court of competent jurisdiction decides that these Additional Procedures for Mass Arbitration apply to your Claim and are unenforceable, then your Claim shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of these Terms, including the remainder of this Dispute Resolution section.

(g) Opt Out of Future Changes. If we make any future changes to the arbitration agreement (other than a change to our contact information), you may reject any such change by sending your personally signed, written notice with a clear statement that you intend to opt out of the changes to the arbitration agreement to the following address within 30 days of the change: Brinker International, Inc., 3000 Olympus Blvd., Dallas, Texas 75019; Attn: Legal Department. Such notice does not constitute an opt out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Claim between you and Brinker in accordance with this version of the arbitration agreement.

Class Action Waiver

You and Brinker agree that ANY PROCEEDING, WHETHER IN ARBITRATION OR IN LITIGATION, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND BRINKER AGREE TO WAIVE ANY RIGHT TO BRING OR TO PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, YOU AND BRINKER RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE OR MASS SETTLEMENT.

Jury Trial Waiver

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND BRINKER WAIVE THE RIGHT TO A JURY TRIAL.

Governing Law and Venue

Except with respect to the arbitration agreement, which is governed by the Federal Arbitration Act and federal arbitration law, these Terms and your use of the Services are governed by the laws of the state of Texas, without regard to Texas choice of law rules.

Unless you and Brinker agree otherwise, to the fullest extent permitted by law, the state and federal courts that encompass Dallas County, Texas shall have exclusive jurisdiction over any disputes (except for matters brought in small claims court) that are not subject to arbitration, or over any action that seeks to enforce or challenge the enforceability of the arbitration agreement or this Agreement. You and Brinker consent to the exclusive jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts because of (i) inconvenient forum or (ii) any other basis or any right to seek to transfer or change venue of any such action to another court.