PLEASE BE AWARE THAT THE SECTION TITLED “DISPUTE RESOLUTION” INCLUDES AN AGREEMENT TO ARBITRATE ANY DISPUTES WITH US AND AS APPLICABLE OUR SUBSIDIARIES AND AFFILIATES AND REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION UNLESS YOU OPT OUT WITHIN 30 DAYS. IT ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THE “DISPUTE SECTION” SECTION CAREFULLY.
PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS ("TERMS") BEFORE ACCESSING OR USING ANY WEBSITE, ONLINE SERVICE, MOBILE APPLICATION, DIGITAL PROPERTY, OR PROGRAM OF KAHALA FRANCHISING, LLC (OR AN AFFILAITE/SUBSIDIARY THEREOF), OR WHERE THESE TERMS ARE POSTED, LINKED OR INCORPORATED BY REFERENCE (COLLECTIVELY, “ONLINE SERVICES”).
THESE TERMS ARE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND KAHALA FRANCHISING, LLC, AND AS APPLICABLE ITS SUBSIDIARIES AND AFFILIATES SUCH AS KAHALA MANAGEMENT, LLC (COLLECTIVELY “WE”, “US” OR “OUR”). THESE TERMS GOVERN YOUR USE OF THE ONLINE SERVICES, WHICH INCLUDES THE PROGRAMS, OFFERS, CONTENT, INFORMATION AND FEATURES MADE AVAILABLE THROUGH THE ONLINE SERVICES.
IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT USE THE ONLINE SERVICES. IF YOU ARE DISSATISFIED WITH THE ONLINE SERVICES IN ANY WAY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USINIG THE ONLINE SERVICES.
The Online Services are not intended to be used by, or targeted to, anyone under the age of 13 years old. If you are under 13 years of age (or the legal age of majority if different in your jurisdiction), please be sure to read these Terms with your parent or guardian, as they must understand and agree to these Terms for you to use the Online Services.
While we operate and control the Online Services, we are not responsible for the operation of most The Counter restaurants. Most restaurants are instead owned and operated by independent franchisees of ours. Each restaurant is solely and independently responsible for its legal and regulatory compliance, for any issues relating to the supply of the products to you, and for any employment related matters in the restaurant. The Online Services may provide links to job opportunities posted by such restaurants. These opportunities are with that particular restaurant alone and not with us.
We reserve the right at any time, in our sole discretion and without liability to update, change, modify, or revise these Terms or the Online Services. Any changes will become effective upon posting to the Online Services, and to the extent permitted by law you waive any right you may have to receive specific notice of such changes. Your continued access to or use of the Online Services and its programs and offers after any such changes indicates your acceptance of the Terms. It is your responsibility to review the Terms regularly for updates and we recommend you review the Terms frequently.
Subject to your compliance with the Terms, we authorize you to view and download the materials from the Online Services, under the condition that all the information, communications, software, scripting, photos, text, video, graphics, sounds, images and other materials and services found on the Online Services (individually and collectively, "Content") may not be copied, distributed, republished, uploaded, posted, publicly displayed, performed or transmitted, in any way, without our prior written consent, EXCEPT only for your personal, non-commercial use and provided that you retain all copyright and other proprietary notices contained in the original Content on any copies of the Content. For purposes of these Terms, any use of the Content on any other website or networked computer environment for any purpose is prohibited.
You agree to use the Online Services, inclusive of the Content, in accordance with these Terms and all applicable laws and regulations. You agree to remain courteous and respectful toward employees, contractors and agents of ours, of franchisees, and partners and other users of the Online Services.
You agree not to: use the Online Services for any purpose prohibited by the Terms, including for any unlawful, fraudulent, or malicious purposes, or to further or solicit any such activity; modify, adapt, translate, or reverse engineer any portion of the Online Services; violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of ours, or any other person or entity; use the Online Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks; and/or use the Online Services for any purpose that results in the commercial resale of our items without our prior written consent.
We reserve the right in our sole discretion, to prohibit access, use, conduct, communications or content that we deem to be harmful to us, the Online Services, the Content, our franchisees, our users, our brand, or any other person or entity, or that violates these Terms, including applicable law. We further reserve the right to terminate, suspend, or cancel your access, if we believe that you have violated or acted inconsistently with these Terms, including applicable law, or that you have acted in a manner harmful to our interests or our franchisees, or that you may be likely to do so based upon prior communications, conduct, interactions, or similar factors. If we take legal action against you as a result of your violation of these Terms, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us. You agree that we will not be liable to you or to any third party for termination of your access to the Online Services as a result of any violation of these Terms.
Unless otherwise noted, all Content and other materials in connection with the Online Services are protected under copyright, trade dress, trademark and/or other intellectual property laws and are owned solely by us, or by other parties that have licensed their material to us. The Online Services are copyrighted and any unauthorized use of such may violate copyright, trademark and/or other laws, in addition to being a material breach of these Terms.
There are a number of proprietary logos, service marks, trademarks, slogans and product designations (individually and collectively, "Marks") found on the Online Services. By so making the Marks available, we are not granting you a license to use them in any manner. Access to the Online Services does not confer upon you any license under any of our or any third party's intellectual property rights. Use of the Marks is restricted as set forth in these Terms.
The Marks may be used publicly only with our prior written permission. No Mark may be used as a hyperlink without our prior written permission. Fair use of the Marks in advertising and promotion requires proper acknowledgment.
All other names and brands are the proprietary Marks of others and may not be used without their respective owner's permission.
We respect the intellectual property rights of others and expect our users to do the same. We will, upon receiving proper notice, act to remove or disable access to any Content or Communications alleged to infringe the copyright rights of a third party as set forth in the Digital Millennium Copyright Act (17 USC § 512) (DMCA). Any notifications of claimed copyright infringement must be sent to us at the following address: customerservice@kahalamgmt.com. When notifying us of the alleged copyright infringement, please provide complete and sufficient information, including identification of the copyrighted work alleged to have been infringed, the alleged infringing Content or Communications, the address and contact information for the owner of the alleged copyright material, and a statement that the information in the notification is accurate, and, under the penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the alleged copyright.
All remarks, suggestions, ideas, innovations, graphics, materials, information, data, concepts, submissions or other communications you transmit or post to or through the Online Services (individually and collectively, "Communications") are given voluntarily by you and are assigned to, and will forever be our property without any further compensation or other benefit to the submitter or any other person. By submitting such Communication you agree you are fully responsible for your Communication, such Communication is not confidential, and you expressly grant us an unrestricted, irrevocable, perpetual, transferable (i.e., fully assignable and sub-licensable), worldwide, royalty-free license to disclose, copy, reproduce, display, publicly perform, transmit, distribute, translate, reformat, incorporate, and otherwise use your Submission along with your name, photograph, voice, likeness and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion. Other than personally identifiable information, which is covered under the Privacy Policy, any Communications will be considered non-confidential and non-proprietary. We will not be liable for any ideas for our business (including, without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future operations of ours. We will have exclusive ownership of all present and future existing rights to the Communications of every kind and nature everywhere.
You may choose to sign up for recurring marketing messages and offers via text message from us dba The Counter (which is deemed a part of “Online Services”). By subscribing to this text messaging program, you consent to receiving text marketing messages at the mobile number you provided to us from us or on our behalf (and our agencies and services providers). You understand consent is not a condition of purchasing any property, goods, or services. We may from time to time transition the number/message platform a text is sent from (i.e. a short code, long code, toll-free number, etc.) to another number/message platform. Each time we will promptly disclose all opt-out information and other legally-required information regarding the transition. Message frequency varies.
You can stop receiving text messages at any time. Just text "STOP" (or QUIT, END, CANCEL, or UNSUBSCRIBE) to the number the text was sent from. After you text "STOP" (or QUIT, END, CANCEL, or UNSUBSCRIBE), you will receive a text to confirm that you have been unsubscribed. After this, you will no longer receive The Counter text messages from us. Opting out of one form of communication does not mean you’ve opted out of other forms as well. For example, if you opt out of receiving text messages, you may still receive marketing email messages if you’ve opted in to receiving them.
If you want to join again, just sign up as you did the first time and we will start sending text messages to you again. If you are experiencing issues with our messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at support@spendgo.com. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. If you have any questions regarding privacy, please read our Privacy Policy. For the avoidance of doubt, our Terms apply to our text messaging program, including the agreement to arbitrate, jury and class action waiver, and limitations on our liability.
Please note these Terms do not apply to any of our franchisees’ text marketing programs. If you receive text messages from our Franchisee, you will need to opt out from them directly. Each franchisee is solely and independently responsible for its legal and regulatory compliance.
The Online Services may link to or allow you to use third-party websites, downloadable materials, content, social networks, or other digital services, including the services of our franchisees (collectively, “Third Party Sites”). Third Party Sites are provided on/through the Online Services only for your convenience. These Third Party Sites may have their separate terms and conditions or privacy policies that you should review and understand before using them. We do not endorse or sponsor, and are not associated with, any of these Third Party Sites, and we have no responsibility arising from or related to these Third Party Sites. If you choose to purchase any product or service from Third Party Sites (including, without limitation, from franchisee’s Third Party Sites), your relationship is with that third party alone.
THE ONLINE SERVICES, INCLUDING ALL CONTENT, MATERIALS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED "AS IS" AND ‘’AS AVAILABLE” WITHOUT ANY WARRANTIES, EXPRESS OF IMPLIED, OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
WE DO NOT WARRANT THE ONLINE SERVICES OR THE CONTENT WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE ONLINE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS THEREFROM.
IN NO EVENT SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE ONLINE SERVICES OR THE CONTENT, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS ONLY, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
You agree to indemnify, defend, and hold us harmless, which you acknowledge “us” includes, our parent, affiliates, subsidiaries and each of their respective officers, directors, members, managers, employees, contributors, representatives, agents, successors and assigns, for, from and against any and all claims, actions, demands, threats, judgments, obligations, proceedings, injunctions, penalties, fines, fees, taxes, losses or other damages and costs (including, without limitation, attorneys' fees and expert witness fees), arising directly or indirectly from or in connection with:
Dispute Resolution
To the extent there are any conflicts between the language below and the remainder of our Terms, the language below shall govern.
Arbitration Agreement
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Site, mobile sites, SMS/MMS programs, any products or services sold or distributed through the Site, or the Terms and prior versions of the Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that were not noticed or that involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
Informal Dispute Resolution. If a Dispute arises between you and us, we are committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and we agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and we agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.
To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to us should be sent by email to us.legal@mtygroup.com and via regular mail to our offices located at Kahala Franchising, L.L.C., Attention: Legal Department, 9311 E. Via de Ventura, Scottsdale, AZ 85258. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute, including the specific relief sought.
We will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.
The Notice must be signed by the party initiating the Dispute (i.e., either you personally or a our representative).
The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
Waiver of Jury Trial. YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and we agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located court in Maricopa County, Arizona or the United States District Court for the District of Arizona. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or us from participating in a class-wide or mass settlement of claims.
Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. Unless doing so would violate applicable law, the arbitrator shall apply Arizona law consistent with the Federal Arbitration Act, and applicable statutes of limitations, and shall honor claims of privilege recognized at law. Foreign laws do not apply.
If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, or after the completion of the Informal Dispute Resolution Conference, if such Informal Dispute Resolution Conference was requested, whichever is later, you and we agree that either party shall have the right to finally resolve the Dispute through binding arbitration.
The arbitration will be administered by the National Arbitration & Mediation ("NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to us should be sent by email to us.legal@mtygroup.com and regular mail to our offices located at Kahala Franchising, L.L.C., Attention: Legal Department, 9311 E. Via de Ventura, Scottsdale, AZ 85258. We will provide the Demand to your email address on file. It is your responsibility to keep your contact information up to date.
If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).
Unless you and we otherwise agree, or the Batch Arbitration process discussed in the “Batch Arbitration” subsection is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”).
You and we agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state and will be selected by the parties from NAM's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under the “Batch Arbitration” subsection is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. Unless fee shifting is specifically authorized by law or by the NAM Rules, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.
All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us, subject to ultimate allocation by the Administrative Arbitrator.
You and we agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Kahala Franchising, L.L.C., Legal Department, 9311 E. Via de Ventura, Scottsdale, AZ 85258, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your The Counter account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. Any opt-out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or our rights. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.
Invalidity, Expiration. If any part or parts of this Arbitration Agreement (other than the “Waiver of Class or Other Non-Individualized Relief” and “Batch Arbitration” subsections are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if either or both the “Waiver of Class or Other Non-Individualized Relief” and “Batch Arbitration” subsections of this Arbitration Agreement are found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state court in Maricopa County, Arizona or the United States District Court for the District of Arizona. You further agree that any Dispute that you have with us as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. You and we agree that we retain the right to modify this Arbitration Agreement in the future. Any such changes will be posted at this URL and you should check for updates regularly. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, we will notify you. Your continued use of the Site mobile sites and/or SMS/MMS programs - for example, not deleting your account; or accessing, browsing, or otherwise using the Site, mobile sites, SMS/MMS programs; or accepting products or services offered through the Site or the mobile sites - following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of these Terms with an arbitration agreement and you did not validly opt out of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
Our Privacy Policy applies to use of the Online Services and programs, offers, and promotions, and its terms are made a part of these Terms by this reference. By accessing and using the Online Services you agree to be bound by our Privacy Policy.
Our choice or failure to enforce any part of these Terms shall not constitute a waiver of any of our rights under these Terms, whether for past or future actions on the part of any person. Neither the receipt of any funds by us nor the reliance of any person on our actions shall be deemed to constitute a waiver of any part of these Terms. Only a specific, written waiver signed by an authorized representative of ours may provide a legal waiver.
If any provision of these Terms shall be found to 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.
We may transfer our rights and obligations under these terms to another organization or entity, but this will not affect your rights or our obligations under these terms. You may only transfer your rights or obligations under these terms to another person if we agree in writing.
If you have additional questions or comments, please contact us at customerservice@kahalamgmt.com, or
9311 E. Via de Ventura
Scottsdale, AZ 85258