PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY USING A WEBSITE OR MOBILE APPLICATION (“APP”) PROVIDED BY KABOBG (“KABOBG,” “WE” “US” OR “OUR”) ANY RELATED ENTITY OR AFFILIATE, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (EACH SUCH INDIVIDUAL OR ENTITY, AND KABOBG, A “KABOBG ENTITY”), YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS (“TERMS”), INCLUDING THE ARBITRATION AGREEMENT AND SEPARATE CLASS ACTION WAIVER INCLUDED BELOW.
These Terms govern all use of the websites and Apps (each, a “Service”) provided by KabobG or a KabobG Entity. By accessing and using a Service, you agree, on your own behalf and on behalf of any person, corporation, or other entity that you represent or for which you access the Service (your “Company”), to be bound by and comply with these Terms and to comply with all applicable laws and regulations. If you do not agree to these Terms, you are not authorized to use our Services.
Additional terms may apply to certain portions of a Service, including third-party platforms integrated with the Service to provide functionality such as online ordering. Such additional terms are posted in the applicable portion of the Service. If you access any such portions of the Service, you are bound by both those other terms and these Terms, with these Terms controlling in the event of any conflict between these Terms and those terms.
1.1 We may change these Terms at any time, and all such changes are effective immediately upon notice, which we may give by any means, including by posting a revised version of these Terms or other notice on the Service, or by any other reasonable means designed to provide notice under the circumstances. You should review the terms posted on the Service often to stay informed of changes that may affect you. By continuing to use a Site after the date posted, you agree to all changes in the Terms, as they are amended from time to time.
1.2 We expressly reserve the right to make any changes that we deem appropriate from time to time to the Service or to any information, text, data, databases, graphics, images, sound recordings, audio and visual clips, logos, software, opportunities, features, services, and other materials within the Service (all such materials, and any compilation, collection, or arrangement thereof, the “Content”).
We aim to avoid legal disputes and hope to resolve any issues amicably, fairly, and as quickly as possible. To facilitate the effective resolution of any disputes, you and we agree to the following provisions.
2.1 These Terms will be construed and enforced in accordance with the Federal Arbitration Act, and to the extent state law applies, the laws of the State of Illinois (without regard to Illinois choice of law principles). The selection of the well-developed law of Illinois to govern these Terms is designed to ensure uniformity and advance efficiency, among other things.
2.2 Notice Requirement. To try to resolve a KabobG Dispute quickly and efficiently, before you can institute arbitration or file a lawsuit against KabobG or a KabobG Entity relating to a KabobG Dispute, you agree to the following procedures. These procedures are designed to help reach a fair, fact-based resolution. They are not optional.
You must send a written notice to KabobG (a “Notice”) describing the KabobG Dispute. The Notice should include your name, address, and other contact information; a description of the KabobG Dispute (including any relevant account names); and what resolution is being sought.
The Notice must be sent to the following address (the “Notice Address”): KabobG Legal Disputes, 5419 N. Sheridan Road, Suite 116, Chicago, Illinois 60640.
Complying with the Notice Requirement is mandatory. You agree that you will not take any legal action, including filing a lawsuit or instituting arbitration, until 60 business days after you send a Notice, except that, notwithstanding this provision and the provisions below, you may seek relief in small claims court for disputes or claims within the scope of its jurisdiction. If you do not file a compliant Notice, a court may enjoin the filing of an arbitration demand and may order a party that has filed an arbitration demand without having provided a compliant Notice to reimburse the other party for any arbitration fees and costs already incurred.
KabobG and any applicable KabobG Entity agrees to toll the limitations period, if any, from the date the Notice is sent until the date the KabobG Dispute described in the Notice is resolved.
2.3 ARBITRATION AGREEMENT
Please read these paragraphs carefully and completely. They affect your rights and will have a substantial impact on how a KabobG Dispute is resolved.
a) You and your Company agree that any and all claims, controversies or disputes of any kind (whether in contract, tort, or otherwise) you may have against KabobG or a KabobG Entity, which we define as a “KabobG Dispute”, will be resolved exclusively by final and binding arbitration in accordance with these provisions.
Without limiting the scope of a KabobG Dispute, examples of KabobG Disputes include any and all claims, controversies, or disputes arising out of or relating in any way to:
b) This Arbitration Agreement is intended to be interpreted as broadly as possible, consistent with governing law, and to survive after your relationship with the Service, KabobG or a KabobG Entity ends.
Notwithstanding the intended breadth of this agreement, the following are exempt from the arbitration requirement:
Further, you and we may seek an injunction in court on an individual (non-class) basis to preserve the status quo between us for the entire period until we resolve the KabobG Dispute in arbitration.
d) Individual Arbitration. In the unfortunate event that the KabobG Dispute described in the Notice is not resolved to your satisfaction within 60 business days, the following paragraphs describe how the KabobG Dispute will be resolved pursuant to this Arbitration Agreement, which shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
(1) The KabobG Dispute will be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (the “AAA”) and conducted before a sole arbitrator in accordance with the AAA Consumer Arbitration Rules in force at the time you send the Notice, as modified by the agreement to arbitrate described in these Terms. The current AAA rules are available at www.adr.org or by calling 1-800-778-7879.
(2) By “binding,” we mean that both you and we will have to live with the arbitrator’s decision, except to the limited extent appeals to a court are permitted under the FAA. As limited by the FAA, these Terms, and the rules applicable to the arbitration, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but (as provided above) only to the extent necessary to provide relief to a party in arbitration warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.
(3) If you or we believe that AAA is unable to conduct the arbitration in a timely and effective manner, you or we may request that your KabobG Dispute be filed with another national arbitration company and governed by another national arbitration company’s rules. Each party will consider the request in good faith and determine whether to proceed with arbitration through AAA or instead to arbitrate using a different company.
(4) Unless you and we agree otherwise, the arbitrator will decide the dispute by providing a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. The arbitrator’s decision shall be controlled by these Terms (including this Arbitration Agreement) and any of the other agreements referenced herein that the parties may have entered into.
(5) The arbitrator shall apply Illinois law (without regard to Illinois choice of law rules or principles), consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator’s application of the well-developed law of Illinois is designed to ensure uniformity and advance efficiency, among other things.
(6) For KabobG Disputes involving less than $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary.
(7) If an in-person hearing is required, the arbitration shall be held in Chicago, Illinois, but may proceed telephonically, by video, or in another location if Chicago is not reasonably accessible, if both parties agree, or if the arbitrator determines that this would pose a hardship for you.
(8) There shall be no authority for any claims to be arbitrated on a class or representative basis, even if the arbitration provider has rules permitting class or mass or collective arbitrations. Arbitration under these Terms can decide only individual claims by you and/or the applicable KabobG Entity or KabobG Entities; the arbitrator may not consolidate, join, or adjudicate the claims of other persons or parties who may be similarly situated against KabobG or an applicable KabobG Entity. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or us to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence).
Notwithstanding any other provision of this Arbitration Agreement and these Terms, any dispute over the enforceability of this subparagraph (6) shall be resolved by a federal Court in the Northern District of Illinois and not by an arbitrator.
(9) An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.
(10) Payment of all filing, administration and arbitrator fees will be governed by AAA’s rules. If you demonstrate to the applicable KabobG Entity’s satisfaction in its reasonable discretion that you are unable (or not required under the applicable rules) to pay any fees and deposits that are required under the AAA rules, the applicable KabobG Entity agrees to forward them on your behalf, subject to being reimbursed in whole or in part, as permitted, based on an ultimate allocation by the arbitrator. In addition, if you are able to demonstrate to the applicable KabobG Entity’s satisfaction in its reasonable discretion that the costs of individual arbitration will be prohibitive as compared to the costs of individual litigation, the applicable KabobG Entity will pay as much of those costs (but not attorney or other representation fees) in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose, then you agree to reimburse KabobG for any fees if KabobG so wishes.
(11) If 10 or more claimants submit KabobG Disputes or seek to file arbitrations raising similar claims, arising from the same business decision, or arising from similar underlying facts, and are represented by the same or coordinated counsel, whether such cases are pursued simultaneously or not, each such claim is considered a “Coordinated Claim” and each such claimant is defined as a “Coordinated Claimant.”
To ensure fairness and efficiency, Coordinated Claims must be resolved in the staged proceeding process described below. You agree to this process even though it may delay the arbitration of your claim. A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
In the first stage, Coordinated Claimants’ counsel and the applicable KabobG Entity will each select an equal number of Coordinated Claims (up to the lesser of one-half of the Coordinated Claims or 5 cases each (10 cases total)) to proceed in arbitration and resolved individually by different arbitrators.
In the meantime, no other Coordinated Claims, cases, or KabobG Disputes involving the same or similar subject matter or claims may proceed in arbitration, and the AAA must not assess or demand payment of fees for the remaining Coordinated Claims or administer or accept them.
If the AAA nonetheless assesses or demands payments of fees for the remaining Coordinated Claims, any such Claimants agree to dismiss their arbitration demands without prejudice, with the statute of limitations being tolled from the date of the dismissal. The arbitrators are encouraged to resolve the first-stage cases within 120 days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties.
After the first stage is completed, the parties must engage in a single mediation of all remaining Coordinated Claims. The applicable KabobG Entity will select the mediator and pay the mediation fee. If the parties agree, the Coordinated Claimants may select the mediator and pay half the cost of mediation.
If all remaining Coordinated Claims are not resolved after mediation, the parties will repeat the first-stage process of selecting and filing up to 10 Coordinated Claims to be resolved individually by different arbitrators, followed by mediation.
If any Coordinated Claims remain after the second stage, the process will be repeated until all Coordinated Claims are resolved, with four differences. First, a total of 30 cases may be filed in the third and later stages. Second, the cases will be randomly selected. Third, arbitrators who decided cases in the first two stages may be appointed in later stages if different arbitrators are not available. Fourth, mediation is optional at the election of counsel for the Coordinated Claimants.
Between stages, counsel will meet and confer regarding ways to improve the efficiency of the staged proceedings, including whether to increase the number of cases filed in each stage. Either party may also negotiate with the AAA regarding the amount or timing of AAA fees.
Subject to a mutually agreeable confidentiality agreement, any confidential non-privileged information relevant to a Coordinated Claim—including a decision in a Coordinated Claim—shall be available to other Coordinated Claimants.
This Section concerning arbitration of Coordinated Claims, and each requirement of this Section, is intended to be severable from the rest of this Arbitration Agreement. If the provisions relating to the staging process are severed, then the claims may be filed in individual arbitration pursuant to this Arbitration Agreement except that the payment of AAA fees will be assessed as the arbitrations advance and arbitrators are appointed, rather than when arbitrations are initiated.
e) Changes. Although we may revise these dispute resolution terms in our discretion, as described above, we do not have the right to alter this agreement or the arbitration rules specified herein with respect to any KabobG Dispute once that KabobG Dispute arises, if such change would make arbitration procedures materially less favorable to you.
Whether changed procedures are materially less favorable to the claimant is an issue to be decided by the arbitrator, and if multiple claimants are proceeding in Coordinated Claims, the applicability of revised terms to the Coordinated Claims will be decided by the arbitration provider as a procedural issue.
f) Severability. With the exception of Section 2.2(d)(6) above, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable, or illegal, or deemed to otherwise conflict with the rules of AAA, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein.
If, however, Section 2.2(d)(6) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor the affected KabobG Entity shall be entitled to arbitrate their dispute.
g) Opt-Out. If you do not wish to be subject to this Arbitration Agreement, you may opt out of the Arbitration Agreement. To do so, within 30 days of the date that this Arbitration Agreement is accepted by you, you must send a written notice to the Notice Address described above stating that you wish to opt out of this Arbitration Agreement, as well as your name, address, and email.
TO BE EFFECTIVE, THIS WRITTEN NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW. You are responsible for ensuring that we receive your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt.
If you opt out of these provisions, we will not be bound by them with respect to disputes with you. If you do not opt out of this Arbitration Agreement within the 30-day period, you and KabobG and the applicable KabobG Entity shall be bound by the terms of this Arbitration Agreement.
2.3 Separate and apart from the Arbitration Agreement set forth above and to the maximum extent permitted by law, you hereby independently waive any right to bring or participate in any class action, class arbitration, private attorney general action, or other representative action, however denominated, in any way related to any KabobG Dispute.
YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST KABOBG OR ANY KABOBG ENTITY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING.
2.4 YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTIONS, SUITS, OR PROCEEDINGS ARISING OUT OF OR RELATING TO THESE TERMS.
2.5 BY USING THIS SERVICE, YOU WAIVE ANY AND ALL RIGHTS TO BRING ANY ARBITRATION, CLAIM OR ACTION AGAINST KABOBG OR ANY KABOBG ENTITY IN ANY FORUM MORE THAN ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE ACT, EVENT, CONDITION, OCCURRENCE, OR OMISSION UPON WHICH THE CLAIM OR ACTION IS BASED, UNLESS KABOBG OR THE APPLICABLE KABOBG ENTITY AGREES OTHERWISE, OR UNLESS A LONGER PERIOD IS REQUIRED BY LAW.
2.6 You and we agree that disputes that qualify for small-claims court may be brought as individual actions only in such small-claims courts. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE TO WAIVE THE RIGHT TO A JURY TRIAL IN SMALL CLAIMS COURT. Any KabobG Dispute brought in small claims court must remain in such court and may not be removed or appealed to a court of general jurisdiction and may advance only on an individual (non-class, non-representative basis).
Information that you provide to us or that we collect about you and your Company through your access to and use of the Service is subject to our Privacy Policy, the terms of which are hereby incorporated by reference into these Terms. We encourage you to read and become familiar with our Privacy Policy and related terms, which are available at https://www.kabobg.com/privacy-policy/.
You understand and agree that we own, or (where applicable) we have licensed from third parties, the Service and all of the Content. You acknowledge and agree that the Content constitutes valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using the Service or the Content. Such intellectual property and proprietary rights may include, but are not limited to, copyrights, trademarks and service marks, trade dress, and trade secrets, and all such rights are the property of KabobG or its licensors.
5.1 You may access and use this Service only for your personal use (or, if accessing the Service on behalf of a Company, only your Company’s own internal use). Any other access to or use of the Service or the Content constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws. The Service is controlled and operated by KabobG from within the United States of America, and is intended for use only by residents of the United States and Canada. KabobG and the KabobG Entities make no representations or warranties that the Content or the Service is appropriate or lawful in any other countries, or that any items offered for sale or download through links on the Services will be available outside the United States or Canada. We make no representation that Service or Content is appropriate or available for use in locations other than the United States. If you choose to access this Service from locations other than in the United States, you do so at your own initiative, at your own risk, and are responsible for complying with applicable local laws, if and to the extent local laws are applicable. You may not use or export or re-export any content downloaded from the Service or any copy or adaptation of such content, in violation of any applicable laws or regulations, including United States export laws and regulations.