Terms & Conditions
Updated: 1/19/2023
The Tomatina Rewards Program (“Program”) is a rewards program sponsored by NBR Tomatina LLC (“Tomatina” or “we” or “us”) intended to show our appreciation for loyal customers (each a “Member” or “you”) who frequently dine with us. Registration, membership, and all related benefits of the Program are subject to these Terms & Conditions (“Terms”), as they may be amended from time to time without notice to you, by posting a revised version of the Terms on this website. Please read these Terms carefully. If you do not agree to these Terms, please do not participate in the Program. Any changes will be effective prospectively. It is your responsibility to review the Terms periodically to be aware of any such changes.
PLEASE NOTE THAT ANY DISPUTE, CLAIM OR CONTROVERSY RELATED TO THESE TERMS OR ARISING OUT OF YOUR ACCESS TO OR PARTICIPATION IN THE PROGRAM MUST BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS, AND MAY NOT BE ARBITRATED OR OTHERWISE PURSUED AS A CLASS ACTION. PLEASE SEE FURTHER DETAILS BELOW.
Eligibility, Registration and Participation
To register for the Program, you must be a legal resident of the United States (excluding U.S. territories), and have a valid postal address with zip code, email address, and telephone number. You must also be at least 18 years old. Businesses, corporations, joint ventures, partnerships, groups, associations, and other non-personal entities are not eligible to participate in the Program. We reserve the right to refuse Program participation to any person for any reason, in our sole discretion. Memberships cannot be sold, transferred, or assigned. Membership does not grant or convey any interest in Tomatina or its affiliates, or the assets of Tomatina or its affiliates.
To participate in the Program, you must register at Tomatina.com or through the Tomatina app by providing certain identifying information, including your name, mailing address, email address, birth date, and telephone number. All information you submit must be truthful and kept current by promptly updating your information online with any changes. Rewards can only be redeemed after registration. To receive points for “Qualifying Purchases” (discussed below), provide the email address or phone number with which you registered to your server, or the host(ess) if dining out, to identify yourself as a Member. You can also receive points for Qualifying Purchases made online while logged into your Tomatina rewards account. You can check your point and reward balances on our website and/or Tomatina app. Information about current promotions and events will be sent to the mailing address and/or email address you provide. You hereby consent to the receipt of periodic marketing materials from us via mail, SMS text message, and/or email. Standard text message service charges may apply, depending your cellular carrier and plan. You may opt out by following the opt-out mechanism in marketing materials received from us.
Qualifying Purchases
Points will be issued for all dine-in, to-go, and online orders. The dollar amount of a Qualifying Purchase will not include the amount of any sales tax, state fees, delivery charges, discounts or gratuities added to the food and beverage charge. Purchases of Tomatina gift cards will not count as Qualifying Purchases, but purchases made with Tomatina gift cards will count. Other exclusions may apply.
Point Accumulation and Reward Redemption
We will attempt to award points with Qualifying Purchases on a timely basis. However, you have the responsibility of making sure that your purchases are properly credited. Please retain copies of your receipts and/or account statements for your records. We have no liability for (a) any printing, production, typographical, mechanical, or other errors regarding the accumulation or redemption of points or any other aspect of the Program; (b) any delay or failure to award or redeem points; or (c) any failure to provide Program communications. We reserve the right to invalidate purchases that were awarded points if we determine that such purchases were improperly credited to your account or obtained fraudulently. We reserve the right to require proof of Qualifying Purchases recorded in your account, and we reserve the right to delay the processing of any reward, without notice to you, in order to assure compliance with these Terms.
Privacy Policy
Information you submit on our website will be used as described in our Privacy Policy, which is set forth on another page of this website, incorporated by this reference into these Terms, and can be accessed by clicking here. By registering for and participating in the Program, you are agreeing that we may use your information as described in the Privacy Policy. You are also agreeing to review these Terms and the Privacy Policy regularly so that you can make informed decisions about your use of our website, your participation in the Program, and the personal information you choose to share with us.
Restrictions, Termination and Modification
We reserve the right at any time to limit Program participation, to establish different levels of membership or to target offers that may result in promotions that are not available to all Members. We may discontinue your membership and void or cancel your account at any time, for any reason, without notice to you, including if we suspect that you have acted illegally or in violation of these Terms. These rights are in addition to any other legal or equitable remedy that may be available to us under applicable law. You will forfeit your entitlement to any Program reward immediately upon termination of your membership. Any membership without any activity for a 12-month period will be closed and all points and rewards forfeited.
We reserve the right, at our sole discretion, to (a) suspend, change or terminate the Program, any promotion, or any Member benefit, in whole or in part; (b) modify, limit or suspend the use and/or redemption of any points in any respect; (c) modify redemption procedures; (d) modify, limit or suspend the accumulation of points, including without limitation, imposing time limits and changes in point values. We may make these changes even though the changes may affect the value of Member points already accumulated at any time and from time to time. Your continued participation in the Program after any modification to the Program and/or these Terms will indicate your acceptance of any such modification. You agree to assume responsibility for reviewing these Terms for any updates or modifications.
Member Representations
By registering for and/or participating in the Program, you are expressly agreeing to be bound by these Terms, as they may be amended from time to time by us in our sole discretion. You agree to not misuse Program privileges by engaging in conduct that is detrimental to us, including without limitation: having multiple accounts; participating in purchasing or redemption fraud; or using any robot, spider, other automatic device, or manual process to transact with or monitor the Program. You agree to comply at all times with all laws, rules, and regulations that are applicable to you. You hereby acknowledge that you may only participate in the Program if and to the extent that such participation is permitted by all applicable laws, rules, and regulations, and that your registration and participation are subject to our acceptance. We may restrict, modify, or terminate your participation in the Program at any time without liability. You agree to provide only true information to us at all times, and to promptly notify us of any change in your information by updating your account on our website. You agree that you are responsible for restricting access to and maintaining the confidentiality of your account and password, and you agree to accept responsibility for the activities of anyone using your account or password.
Limitation of Liability, Release of Claims, Dispute Resolution
Waiver of Class Action and Jury Rights
PLEASE REVIEW THIS SECTION CAREFULLY. YOU ARE WAIVING CERTAIN LEGAL RIGHTS INCLUDING, WITHOUT LIMITATION, THE RIGHT TO GO TO COURT BEFORE A JURY TO ASSERT OR DEFEND YOUR RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
NONE OF TOMATINA, ITS AFFILIATES, PROGRAM PARTNERS, VENDORS, DISTRIBUTORS, OR INDEPENDENT CONTRACTORS, OR ANY OF THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY “TOMATINA PARTIES”) SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY CLAIM, LOSS, INJURY, DAMAGE, DELAY, ACCIDENT, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS OF SUIT), OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (COLLECTIVELY, “LOSSES AND DAMAGES”), DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO (I) THESE TERMS; (II) THE PROGRAM OR THE WEBSITE OR THE APP; (III) ANY FAILURE, DELAY OR DECISION BY US IN ADMINISTERING THE PROGRAM; (IV) ANY UNAUTHORIZED USE OF AN ACCOUNT OR ANY BREACH OF SECURITY BEYOND OUR REASONABLE CONTROL; (V) ANY OFFER, REPRESENTATION, STATEMENT OR CLAIM ABOUT THE PROGRAM MADE BY ANY TOMATINA PARTY OR ANY OTHER PERSON OR ENTITY; OR (VI) THE PURCHASE, REDEMPTION OR USE OF ANY REWARDS WHETHER MADE AVAILABLE BY ANY TOMATINA PARTY OR ANY OTHER PERSON OR ENTITY, OR OTHERWISE. The foregoing limitations of liability shall apply whether the alleged liability is based on contract, negligence, tort, strict liability or any other basis, even if we or our affiliates or our or their representatives have been advised of or should have known of the possibility of such losses and damages, and without regard to the success or effectiveness of other remedies.
IN NO EVENT SHALL THE TOMATINA PARTIES’ MAXIMUM COMBINED AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE WHATSOEVER IN ANY CALENDAR YEAR ARISING OUT OF OR IN CONNECTION WITH ANY OF THE MATTERS DESCRIBED ABOVE EXCEED $25.00.
By participating in the Program, you hereby agree: (a) to release the Tomatina Parties from any and all liability, loss or damage incurred with respect to the issuance, receipt, possession, and/or use or misuse of any reward; AND (b) under no circumstances will you be permitted to obtain rewards for, and you hereby waive all rights to claim, punitive, incidental, consequential, special or any other damage or loss, other than for actual out-of-pocket expenses.
By participating in the PROGRAM, you ALSO hereby agree that, in the event of any dispute, claim or controversy (each a “dispute”) related to these terms or arising out of your access to or participation in the program, or the breach, termination, enforcement, interpretation or validity thereof, including THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THE AGREEMENT TO ARBITRATE, YOU agree to submit the dispute to binding arbitration for resolution. Arbitration means that neither you nor Tomatina can sue the other in court and that a neutral arbitrator will decide the dispute, not a judge or jury. the complaining party shall notify the other party in writing through a demand for arbitration, which shall be made within a reasonable time after the dispute has arisen, but in no event shall it be made after two years from when the aggrieved party knew or should have known of the dispute. This arbitration provision is governed by the Federal Arbitration Act. arbitration shall be determined in san francisco county, CALIFORNIA, the dispute shall be tendered to the judicial arbitration and mediation services organization (“jams”) office IN san francisco county before one arbitrator, and ADMINISTERED by jams. Unless mandated by applicable law, each party shall bear his or her or its own attorneys’ fees and costs. If it is determined by the arbitrator or a court that any part of the dispute is not subject to arbitration, the parties acknowledge, agree and stipulate that the part of the dispute that is not subject to arbitration shall be stayed pending resolution of the arbitration. The arbitration award shall be binding, complete and final, with no right of appeal. the arbitrator shall have the EXPRESS right and discretion to fashion injunctive or any other form of equitable relief but not the right or discretion to award any indirect, consequential, special, or incidental damages. The parties agree they shall not disclose the existence, content, or result of the arbitration without the prior written consent of both parties.
By participating in the PROGRAM, you ALSO hereby agree that YOU ARE waiving rights to a court or jury trial for all of the matters described above. You also agree (i) that you may bring claims only in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and (ii) not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if TOMATINA is a party to the proceeding.
Notwithstanding any other provision of thESE TERMS, the provisions of this SECTION shall survive any cancellation or termination OF YOUR ACCESS TO OR PARTICIPATION IN THE PROGRAM.
No Warranty
THE PROGRAM AND THE WEBSITE ARE PROVIDED “AS-IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WHATSOEVER, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO THE PROGRAM AND THE WEBSITE.
Governing Law
The Program and these Terms, and the respective rights and obligations of the parties hereunder, shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles.
Miscellaneous
If we fail to act with respect to your breach or anyone else’s breach of these Terms on any occasion, we do not waive our right to act with respect to future or similar breaches.
These Terms represent the entire understanding between us regarding your participation in the Program, your entitlement to earn rewards through the Program, and your entitlement to any other benefits of the Program, and supersede all prior agreements between us, whether oral or written, including, without limitation, all previous versions of these Terms. Any user of any portion of the Program is deemed to have accepted these Terms.
If any provision of these Terms (including limitations of liability) is held by a court of competent jurisdiction to be void, invalid, contrary to law, or unenforceable for any reason, such provision shall be deemed 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 shall remain in full force and effect.
The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation” if a phrase of similar import is not used. The headings in these Terms are used for convenience only and are not to be considered in construing or interpreting the Terms. In any case where Tomatina has or reserves a right herein, such right or reservation of right shall be deemed to mean in Tomatina’s sole and absolute discretion, for any or no reason, and at any time.
You and Tomatina agree that all rights and obligations of both parties that are intended to survive cancellation or termination of your access to or participation in the Program will so continue after cancellation or termination, to the extent permitted by applicable law.
CONTACT US
If you have any questions about the Program, you may contact us at Tomatina Rewards Program, 150 Pelican Way, San Rafael, CA 94901 or feedback@tomatina.com.