DISPUTE RESOLUTION, ARBITRATION CLAUSE AND CLASS ACTION WAIVER
You agree that any claim or dispute at law or equity that has arisen or may arise relating in any way to or arising out of these Terms will be resolved in accordance with the provisions set forth in this Dispute Resolution section. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED.
You agree that whenever you have a disagreement with Shake Shack Crystal Cove arising out of, connected to, or in any way related to the use of any system or product, you will send a written notice to Shake Shack Crystal Cove (“Demand”). You agree that the requirements of this Dispute Resolution section will apply even to disagreements that may have arisen before you accepted these Terms. You must send the Demand to the following address (the “Notice Address”): Legal Department, Shake Shack Crystal Cove, 32565 B Golden Lantern, Dana Point, CA 92629. You agree that you will not take any legal action, including filing a lawsuit or demanding arbitration, until 20 business days after you send a Demand. If the disagreement stated in the Demand is not resolved to your satisfaction within 10 business days after it is received, and you intend on taking legal action, you agree that you will file a demand for arbitration with the American Arbitration Association (the “Arbitrator”). This arbitration provision limits the ability of you and Shake Shack Crystal Cove to litigate claims in court and you and Shake Shack Crystal Cove each agree to waive your respective rights to a jury trial or a state or federal judge. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would. You agree that you will not file any lawsuit against Shake Shack Crystal Cove in any state or federal court. You agree that if you do sue in state or federal court, and Shake Shack Crystal Cove brings a successful motion to compel arbitration, you must pay all fees and costs incurred by Shake Shack Crystal Cove in court, including reasonable attorney’s fees. For any such filing of a demand for arbitration, you must effect proper service under the rules of the Arbitrator and notice to the Notice Address may not be sufficient. If, for any reason, the American Arbitration Association is unable to conduct the arbitration, you may file your case with any national arbitration company. The Arbitrator shall apply the AAA Consumer-Related Disputes Supplementary Procedure effective September 15, 2005 (as may be amended) and as modified by the agreement to arbitrate in this Dispute Resolution section. You agree that the Arbitrator will have sole and exclusive jurisdiction over any dispute you have with Shake Shack Crystal Cove. The Federal Arbitration Act allows for the enforcement of arbitration agreements and governs the interpretation and enforcement of the agreement to arbitrate.
You agree that you will not file a class action or collective action against Shake Shack Crystal Cove, and that you will not participate in a class action or collective action against them. You agree that you will not join your claims to those of any other person. Notwithstanding any other provision in these Terms, if this class action waiver is invalidated, then the agreement to arbitrate is null and void, as though it were never entered into, and any arbitration dispute at that time will be dismissed without prejudice and may be refiled in a court. Under no circumstances do you or Shake Shack Crystal Cove agree to class or collective procedures in arbitration or the joinder of claims in arbitration. Shake Shack Crystal Cove agrees that we will submit all disputes with you to arbitration before the Arbitrator.
These Terms constitute the entire agreement between you and Shake Shack Crystal Cove and govern your use of the Services and supersede all prior or contemporaneous communications and proposals whether electronic, oral or written, between you and Shake Shack Crystal Cove with respect to the Services. Both you and Shake Shack Crystal Cove acknowledge and agree that no partnership is formed and neither you nor Shake Shack Crystal Cove has the power or the authority to obligate or bind the other.
The failure of Shake Shack Crystal Cove to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ original intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.
The failure of Shake Shack Crystal Cove to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state, or local governmental authorities, or for any other reason beyond the reasonable control of Shake Shack Crystal Cove shall not be deemed a breach of this agreement. If Shake Shack Crystal Cove fails to act with respect to your breach or anyone else’s breach on any occasion, Shake Shack Crystal Cove is not waiving its right to act with respect to future or similar breaches.
The headings in these Terms are for your convenience and reference. These headings do not limit or affect this agreement.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms constitute a binding agreement between you and Shake Shack Crystal Cove, and are accepted by you upon your use of the Services. This agreement constitutes the entire agreement between you and Shake Shack Crystal Cove regarding the use of the Services and the features therein and supersedes and replaces any prior agreements between you and Shake Shack Crystal Cove regarding the use of the Services. By using the Services, you represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.