Terms and Policy
Updated: November 27, 2022
By accessing or using this Restaurant website (“Site”), accessing or using any content, information, services, features or resources available or enabled via the Site, and/or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not access and/or use the Site. As used in this Agreement, “you” or “your” means any visitor, user, or other person who accesses our Site, whether or not such person registered for an Account (as defined below). Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Site.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH RESTAURANT, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND RESTAURANT EACH WAIVE THE RIGHT TO A TRIAL BY JURY. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST RESTAURANT, WHETHER NOW PENDING OR FILED IN THE FUTURE.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY IN SECTIONS 6 AND 7 THAT MAY AFFECT YOUR LEGAL RIGHTS.
- REGISTRATION & USING THE SITE. (IF WE’VE OPEN THIS OPTION TO THE PUBLIC)
- You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone.
- If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Site, and your parent or legal guardian must read and agree to this Agreement prior to your using the Site. Notwithstanding the foregoing, you are not authorized to use the Site if you are under the age of 13.
- If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if we have reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, or if we believe that you have breached this Agreement, we have the right to immediately block your current or future use of the Site and/or terminate this Agreement with you. If your Account is terminated for any or no reason, you may forfeit any pending, current, or future account credits or other promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.
- You are responsible for maintaining the confidentiality and security of your Account including your password, and any other login credentials. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify us of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. We will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.
ONLINE ORDERING AND OUR CREDIT POLICY.
- Certain features of the Site may require you to make payments, including to purchase food, beverages, and/or merchandise, and to pay service and/or delivery fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by us. We may offer credits or refunds on a case-by-case basis in our sole discretion, including, by way of example, in the event of an error with your order or in the amounts you were charged.
- We will charge, and you authorize us to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. Please note, you are unable to complete checkout with only gift card information. In all events, you are required to provide another form of payment to submit an order, even if this payment method is not charged.
- We reserve the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Site at any time, and further reserve the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for restaurant food and beverage items. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower than the total amount due. Regardless of the cause, we reserve the right to charge the final price after checkout, including without limitation all applicable transaction taxes. We may also, in our sole discretion, make loyalty credits or other promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these loyalty credits or promotional offers will have no bearing on your obligation to pay the amounts charged.
YOUR CONTENT AND CONDUCT.
- Your Conduct. By accessing the Site, you agree:
- to comply with the Agreement and all applicable laws, rules and regulations in connection with your use of the Site, including, without limitation, laws regarding online conduct and Your Content (as defined below);
- not to use the Site for any commercial or other purposes that are not expressly permitted by this Agreement;
- not to access the Site using a third party’s account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
- not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by us to protect the Site, or otherwise attempt to gain unauthorized access to any part of the Site or to another Account;
- not to extensively or automatically copy any content from the Site (in other words, no scraping);
- not to use the Site in any manner that could damage, disable, overburden, and/or impair it, or interfere with any other party’s use and enjoyment of the Site;
- not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (e.g. by email or instant message), sending of viruses or other harmful files, harassment, stalking, copyright infringement, or otherwise deleting the copyright or other proprietary rights notice from any portion of the Site; and
- not to disrupt, interfere with, or otherwise harm or violate the security of the Site, system resources, accounts, passwords, servers or networks connected to or accessible through the Site or affiliated or linked sites.
- You agree to comply with the above conduct requirements, and agree not assist or permit any person in engaging in any conduct that does not comply with the above conduct. In the event that we believe that you have breached any of the above conduct requirements, we reserve the right to suspend and/or permanently terminate your Account at our sole discretion. Further, you agree that the consequences of commercial use or re-publication of Your Content (defined below), or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that we will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
- Your Content. We may provide you with interactive opportunities (i) on the Site, including, without limitation, features such as user ratings and reviews, saved favorites, user profiles and pictures, (ii) on social media pages maintained by us, as well as (iii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas”). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to us through the Site, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a diner, textual, visual, or audio content and information, whether transmitted via the Site, SMS or MMS message, or otherwise.
- Use of Your Content. You grant us an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in all forms of media now known or hereafter invented for the limited purpose of operating, promoting, and improving our Site, business, products and services, and developing new ones (collectively, the “Uses”).
- All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity.
COMMUNICATIONS & TEXT MESSAGES.
- Your Consent to Receive Communications From Us. When you use the Site, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us or on our behalf electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Site, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- SMS / MMS Messaging. Your voluntary provision to us of your cell phone number represents your consent that we may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications. When you provide your phone number to us, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from us at any time.
- If you unsubscribe from receiving text messages from us, you may continue to receive text messages for a short period while we process your request(s). If you change or deactivate the phone number you provided to us, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive our standard SMS or MMS messages unless you also unsubscribe via the above procedures.
- Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details.
LOYALTY CREDITS / PROMOTIONAL OFFERS.
- When creating an account or initiating a transaction via the Site, you participate automatically in any of our loyalty programs, and earn loyalty credits or rewards, as we determine at our sole discretion.
- Any loyalty or user credit you may have accrued in your account will be applied to your order at the time of purchase, and deducted from the transaction amount charged to the authorized payment instrument associated with your account.
- Loyalty program rewards applied to order-ahead or in-store transactions via the Site will include only those rewards displayed in the Site, and may not include all rewards advertised or offered by us through other channels, including through other mobile apps or websites we may operate or be affiliated with.
- We may discontinue a loyalty program at any time, and reserve the right to terminate a loyalty program, or your participation therein, at any time.
- Any loyalty or user credit has no cash value. You have no property interest in any loyalty or user credit. If we discontinue any loyalty program at any time for any reason, or if your account is suspended or terminated for any reason, any existing loyalty or user credit associated with your account will expire immediately.
- We may refuse to apply loyalty or user credit to delivery, processing or handling fees, or taxes or gratuities. Additionally, we may limit or restrict the component parts of any order or purchase so that only certain items accrue user credit in any loyalty program, or exclude non-item charges such as fees, taxes, and gratuities so that they do not count toward the transaction total in assessing any loyalty program rewards or earned user credit.
- We have no obligation to refund you for any unredeemed loyalty or user credit, or any other benefit associated with a loyalty program following the cancellation, suspension, or modification or any loyalty program or your account.
- THE SITE AND ALL CONTENT ON THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM, WITH RESPECT TO THE SITE AND ALL CONTENT THEREON, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES AND OTHER HARMFUL CODE, SECURITY AND UNINTERRUPTED OPERATION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY, RELIABILITY OR TIMELINESS OF SITE CONTENT OR REGARDING THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE SITE, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU ASSUME THE ENTIRE COST OF USING THE SITE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
- WE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL, NOR SHALL ANY OF OUR SERVICE PROVIDERS; THIS INCLUDES WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
- ALL CONTENT ON THE SITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. YOUR RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SITE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY.
- TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER ACTION OF ANY TYPE THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE THEREOF.
- WE ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SITE. WE ASSUME NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITE, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER ACTION OF ANY TYPE EXCEED IN THE AGGREGATE (A) THE AMOUNT PAID BY YOU TO US THROUGH THE SITE, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
- YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGE ARISING OUT OF YOUR USE OF THE SITE IS TO DISCONTINUE USING THE SITE, WHICH YOU MAY DO AT ANY TIME. THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THIRD PARTY LINKS.
- The Site may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”). We do not review, monitor, operate and/or control the Third Party Websites and we make no guarantees, representations, and/or warranties as to, and shall have no liability for, the content, products and services available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, we are not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. We reserve the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
We will terminate, under appropriate circumstances, users who are copyright infringers, and we reserve the right, in our sole discretion, to terminate any user for actual or apparent copyright infringement.
TERMINATION AND VIOLATIONS OF THE AGREEMENT.
- Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, we reserve the right, in our sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Site or any part thereof, including but not limited to the Site’s features, look and feel, and functional elements. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
- You may terminate this Agreement at any time by closing your Account and ceasing use of the Site. Upon termination of this Agreement for any reason or no reason: (1) your access rights will terminate and you must immediately cease all use of the Site; and (2) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” (vii) “Indemnity” and (viii) “Waiver and Severability.”
- We reserve the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Site from a particular account, device and/or IP address.
- You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
CHANGES TO THE AGREEMENT.
- DISPUTE RESOLUTION. PLEASE READ THIS “DISPUTE RESOLUTION” SECTION CAREFULLY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF FROM RESTAURANT AND REQUIRES YOU TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS.
- Informal Dispute Resolution Procedure.
- There might be instances when a dispute arises between you and Restaurant. In those instances, we are committed to working with you to reach a reasonable resolution; however, we can only do this if we know about and understand each other’s concerns. Therefore, for any issue or dispute that arises between you and Restaurant, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. This includes first sending a written description of the dispute to the other party. For any dispute you initiate, you agree to send the written description of the dispute along with the email address associated with your account to Restaurant’s address as published in the Site. For any dispute that Restaurant initiates, we will send our written description of the dispute to the email address associated with your account. The written description must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; and the relief sought.
- You and Restaurant then agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference between you and Restaurant at Restaurant’s request. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This should lead to resolution, but if for some reason the dispute is not resolved satisfactorily within sixty (60) days after receipt of the written description of the dispute, you and Restaurant agree to the further dispute resolution provisions below.
- To reiterate, this informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
Mutual Arbitration Agreement
- You and Restaurant agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement or payments by or to Restaurant, or that in any way relate to your use of the Site or related services, and/or other content on the Site, your relationship with Restaurant, or any other dispute with Restaurant, shall be submitted exclusively to binding arbitration. This includes claims that arose, were asserted, or involve facts occurring before the existence of this or any prior Agreement as well as claims that may arise after the termination of this Agreement.
- Notwithstanding the foregoing, issues related to the scope, validity, and enforceability of this Arbitration Agreement are for a court to decide. Also, each party retains the right to (1) elect to have any claims heard in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction and (2) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other confidential or proprietary information or intellectual property rights.
- ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM. RIGHTS TO PREHEARING EXCHANGE OF INFORMATION AND APPEALS MAY BE LIMITED IN ARBITRATION. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU AND RESTAURANT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Class Action and Collective Relief Waiver
- YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT IN SECTION 14(g) BELOW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS, JOINT, COLLECTIVE OR CONSOLIDATED BASIS OR IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS CLAIMS AS A PRIVATE ATTORNEY GENERAL OR FOR PUBLIC INJUNCTIVE RELIEF). UNLESS BOTH YOU AND RESTAURANT OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS (EXCEPT AS SET OUT IN SECTION 14(g) BELOW), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS, JOINT, COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING ANY DECLARATORY OR INJUNCTIVE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY TO THE PROCEEDING.
- This Class Action and Collective Relief Waiver is an essential part of this “Dispute Resolution” section, and if it is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Restaurant is entitled to arbitration of such claim or dispute. Notwithstanding the foregoing, if a court determines that the Class Action and Collective Relief Waiver is not enforceable as to a particular claim or request for relief and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be severed and stayed pending arbitration of the remaining claims.
- The arbitration will be administered by the American Arbitration Association (“AAA”). If AAA is not available to arbitrate, the parties will select an alternative arbitration provider. Except as modified by this “Dispute Resolution” provision, the AAA will administer the arbitration in accordance with either (A) the Commercial Arbitration Rules then in effect, or (B) the Consumer Arbitration Rules then in effect if the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1 (together, the “Applicable AAA Rules”). The Applicable AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.
- If after sixty (60) days the Informal Dispute Resolution Procedure above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Applicable AAA Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure.
- Unless you and Restaurant otherwise agree, the arbitration will be conducted in the county where you reside. Subject to the Applicable AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Restaurant, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands presented by or with the assistance or coordination of the same law firm or organization are submitted to AAA or another arbitration provider (if AAA is unavailable) against Restaurant within a 30-day period (or in otherwise close proximity), the arbitration provider shall (i) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Restaurant and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “Batch Arbitrations” provision shall in no way be interpreted as authorizing class arbitration of any kind. Restaurant does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 14(g).
- The arbitrator will render an award within the time frame specified in the applicable AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Agreement. The arbitrator’s award of damages and/or other relief must be consistent with Section 14(c) above and also must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages or other relief for which a party may be held liable.
- Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Restaurant will have the right to recover attorneys’ fees and expenses.
- Your responsibility to pay any AAA filing, administrative, and/or arbitrator fees will be solely as set forth in the applicable AAA Rules (as modified by 14(g) above). If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Restaurant will pay as much of the filing, administration, and/or arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive to you.
Right to Opt-Out of Arbitration.
- Restaurant’s updates to the terms and conditions set forth in this Agreement do not provide you with a new opportunity to opt out of the Mutual Arbitration Agreement if you previously agreed to an Agreement and did not validly opt out of arbitration. Restaurant will continue to honor any valid opt outs if you opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. To opt out, you must notify Restaurant in writing no later than 30 days after first becoming subject to this Mutual Arbitration Agreement. Your notice must include your name and address, the email address you currently use to access your Account (if you have one), and a clear statement that you want to opt out of this Mutual Arbitration Agreement. You must send your opt-out notice to Restaurant’s address, as published on the Site. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with Restaurant or may enter into in the future with us.
- Restaurant reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to any individual claim(s) for which you have already provided notice to us. If Restaurant changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Site after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Restaurant with written notice of such rejection by mail or hand delivery to the address that we have published on the Site, within 30 days of the date such change became effective, as indicated in the date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Restaurant in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
You agree to indemnify and hold Restaurant (including its officers, directors, agents, successors, assigns, and employees) harmless against any and all claims, suits, actions, proceedings, losses, liabilities, and damages (including reasonable attorneys’ fees), arising from or related to: (a) your use of the Site or services related thereto; (b) your breach or violation of this Agreement; (c) any content that you post to the Site; or (d) your violation of the rights of any third party related to the Site or related services.
WAIVER AND SEVERABILITY.
WAIVER AND SEVERABILITY. Our failure to exercise or enforce any rights or provisions of the Agreement shall not constitute a waiver of such rights or provisions. Except as otherwise provided in this Agreement (see “Dispute Resolution” section 14(c)), if any portion of the Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, modified or replaced by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
This Agreement, together with any amendments and any additional agreements you may enter into with us regarding the Site, shall constitute the entire agreement between you and us concerning the Site, any orders placed through the Site and any services accessed through the Site.