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 RESOLUTION” SECTION CAREFULLY. ***
These Terms and Conditions of Use (“Terms and Conditions of Use") apply to your access to, and use of, any MTY FRANCHISING USA, INC., or its Affiliates, dba Thai Express ("Thai Express") website, mobile application, and online service or program where these Terms and Conditions of Use are posted or linked ("Online Services"). These Terms and Conditions of Use are a legal and binding agreement between you and Thai Express, and, as applicable, its subsidiaries, affiliates, and related entities including, without limitation, Kahala Management, L.L.C. (collectively, "Affiliates") (Thai Express and its Affiliates are referred to herein, as the context may require, as "we", "us", or "our"). These Terms and Conditions of Use govern your use of the Online Services, which includes the programs, offers, content, information, services, and features made available through the Online Services. If you do not agree to these Terms and Conditions of Use, then you should not use the Online Services.
Your use of the Online Services is at your risk. If you are dissatisfied with the Online Services in any way, its programs, offers, contents, features, or these Terms and Conditions of Use, your sole and exclusive remedy is to discontinue accessing and using the Online Services.
We reserve the right at any time to update, change, modify, or revise these Terms and Conditions of Use. Any changes will become effective upon posting to the Online Services, along with the date on which it was most recently updated. 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 and Conditions of Use as modified. It is your responsibility to review the Terms and Conditions of Use regularly for updates.
Unless otherwise noted, the Online Services and all content, information, and other materials featured, displayed, contained, and available on the Online Services, including, but not limited to, all text, images, graphics, designs, illustrations, photographs, pictures, audio, software, and video clips, the “look and feel”, pages, screens, content arrangement, and computer programs (collectively, "Materials") are owned in the United States by or licensed to Thai Express and its Affiliates and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under the United States. All other names and brands are the proprietary of others and may not be used without their respective owner's permission. Subject to your compliance with these Terms and Conditions of Use, we grant you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download the Online Services for non-commercial purposes only. You may view, display, copy, download, and print the Materials solely for your own personal, non-commercial use. All copyright, trademark, and other proprietary notices contained on the Materials must be retained on all copies thereof. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, the Online Services or its Materials. Except as expressly provided herein, we do not grant any express or implied right to you under any patents, trademarks, copyrights, or trade secret information.
You agree to abide by all additional terms, conditions, and restrictions included within the Online Services, the Materials, and/or the programs, features, and services.
We may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any Thai Express Online Service, or any portion thereof; (2) change, revise, or modify the Online Services, the Materials, or any portion thereof; (3) interrupt the operation of the Online Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or for any other purposes; (4) impose limits on certain programs, feature s, and services, or restrict your access to the Online Services, in whole or in part ; and/or (5) terminate the authorization, rights, and license given above, upon which you shall immediately destroy all Materials.
You agree to use the Online Services, the Materials, and the programs, features and services in accordance with these Terms and Conditions of Use and all applicable laws and regulations. You agree not to:
We reserve the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to the Online Services, the Materials, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions of Use and/or applicable law.
Except for any personally identifiable information we may collect from you under the guidelines established in our Privacy Policy, any materials, remarks, suggestions, ideas, photos, stories and/or other information you communicate or submit to us through Online Services, via phone, or otherwise ("Submissions") will be considered non-confidential and non-proprietary. By providing a Submission to us, 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. You also permit any user to access, display, view, store, and reproduce, for personal use only, your Submission as posted by us.
We may, but shall not be obligated to, in our sole discretion, post any Submission on the Online Services and identify you as the submitting party. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms and Conditions of Use, 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.
You agree that any statements that you make about us or any of our products, services, or programs in any Submission that you make accurately reflect your personal beliefs and experiences with us and our products and services, and that any opinions submitted are true to the best of your knowledge.
You are fully responsible for your Submissions. You agree that your Submissions comply in all respects with these Terms and Conditions of Use and shall not be made on behalf of any person or entity without their prior written consent. You may not include any content (e.g., text, photos, images, quotes, logos, etc.) that is the property of another (e.g., protected by copyright, trademark, or other intellectual property rights), unless you have express, written permission to do so.
Any programs, offers, sweepstakes, contests, raffles, surveys or other similar promotions (collectively, "Promotions") made available through the Online Services may be governed by rules and/or terms that are additional to these Terms and Conditions of Use. By participating in any such Promotion, you will become subject to any such additional Promotions terms. We urge you to read the applicable Promotions terms, which are either included herein or linked from the particular Promotion, and to review our Privacy Policy which, in addition to these Terms and Conditions of Use, governs any information you submit in connection with any such Promotions.
The Digital Millennium Copyright Act of 1998 ("DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law. If you believe in good faith that Materials available on the Online Services infringe your copyright, you (or your agent) should send us a notice requesting that we remove the Material or block access to it. If you believe in good faith that someone has wrongly submitted a notice to us under this paragraph, then you should send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
If you believe that your work has been improperly copied and posted on the Online Services, then please provide us with the following information: (1) name, address, telephone number, email address, and an electronic or physical signature of the copyright owner or of the person authorized to act on his or her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) the applicable Thai Express Online Service and a description of where the Material that you claim is infringing is located within such Thai Express Online Service; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. These requirements must be followed to give us legally sufficient notice of infringement.
Notices and counter-notices should be sent to:
MTY FRANCHISING USA, INC.
ATTN: Marketing Manager
9311 E. Via de Ventura
Scottsdale, Arizona 85258 USA
kahala.customerservice@mtygroup.com
We suggest that you consult your legal advisor before filing a notice or counter-notice. Please be aware that there may be penalties for false claims under the DMCA.
Certain programs, offers, features, or services offered on or through the Online Services may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify us immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by us or any other Thai Express Online Service user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.
You may not use anyone else’s login at any time without their express written permission. We shall not be liable for any loss or damage arising from your failure to comply with these obligations.
In order to use Online Services made available through a mobile application ("Mobile App") you must have a compatible mobile device. We do not warrant that the Mobile App will be compatible with your mobile device.
If you access the Mobile App using an Apple iOS or Android powered device, Apple Inc. or Google, Inc., and their subsidiaries, respectively, shall be a third-party beneficiary to this contract and you agree that these third-party beneficiaries have the right to enforce these Terms and Conditions of Use against you. However, these third-party beneficiaries are not a party to these Terms and Conditions of Use and are not responsible for the provision or support of the Mobile App. You agree that your access to the Mobile App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
The Mobile App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances updates and/or new versions may reduce or remove features and functionality in prior versions of the Mobile App.
The Online Services may contain links to other third-party websites, including the franchised operators of Thai Express businesses ("Operators"), and social media platforms, such as Facebook, Twitter, or Foursquare (all links to third-party websites and social medial platforms are collectively referred to herein as "Linked Sites"). Linked Sites are provided only for your convenience and do not constitute or imply an endorsement, sponsorship, recommendation of or affiliation with the third party or its products and services. If you decide to visit any Linked Site, you do so at your own risk. We have no responsibility or liability for any Linked Sites, or the content, policies, or actions thereof. If you choose to purchase any product or service from a Linked Site (including, without limitation, from an Operator Linked Site), your relationship is with that third party. You agree that we are not responsible for the quality of third-party products or services, or fulfilling any of the terms of your agreement with the seller, including, but not limited to, the delivery of products and services and warranty obligations related to products and services. Links do not imply that we sponsor, endorse, are affiliated with or associated with, or are legally authorized to use any trademark, trade name, service mark, design, logo, symbol, or other copyrighted materials displayed on or accessible through such Linked Site.
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 and Conditions of Use by this reference. By accessing and using the Online Services you agree to be bound by our Privacy Policy.
Thai Express is a registered trademark of ours in the United States. The absence of a trademark notice or legend indicating our registration or ownership anywhere in the text of the Online Services does not constitute a waiver of our trademark or other intellectual property rights concerning that trademark or service mark used or referenced on the Online Services.
The Online Services, the Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on the Online Services (collectively, the "Thai Express Intellectual Property") are owned by or licensed to Thai Express, or others with all rights reserved unless otherwise noted. We do not permit third parties to use Thai Express Intellectual Property in any manner, including advertising, as an endorsement for any product or service, in association with contests or promotions, or for any other purpose, commercial or otherwise, without our prior express written permission.
Nothing contained on the Online Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use Thai Express Intellectual Property without our prior express written permission. You are strictly prohibited from using any Thai Express Intellectual Property except as expressly provided in these Terms and Conditions of Use. You are also advised that we and/or our licensee(s) will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
When you visit the Online Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Online Services. 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. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions of Use.
You may choose to sign up for recurring marketing messages and offers via text message from us dba Thai Express (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
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 Thai Express 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 information contained in this website is not intended as an offer to sell, or the solicitation of an offer to buy, a franchise. It is for information purposes only. As explained below, any offer to sell a franchise by us will be made only after individuals have completed an application and qualified to receive a Franchise Disclosure Document. Other qualifications will apply in determining whether you will be offered an Thai Express franchise.
Through this website, you can submit to us a form for an Thai Express franchise opportunity. If you submit such form, we will not be obligated to offer you a franchise opportunity. Rather, we will review and evaluate the information you submit to determine if you meet our preliminary criteria for candidate consideration. If we decide that you meet our preliminary criteria, you may be given the opportunity to fill out a more formal application.
Some States regulate the offer and sale of franchises: California, Hawaii, Illinois, Indiana, Maryland, Michigan, Minnesota, New York, North Dakota, Rhode Island, South Dakota, Virginia, Washington and Wisconsin. If you are a resident of one of these states, are receiving this message in one of these states, or intend to operate a franchise in any of these states, we will not offer you a franchise unless and until we have complied with any applicable pre-sale registration and/or disclosure requirements in the applicable jurisdiction.
Thai Express is committed to legal compliance and ethical conduct for itself and expects the same of its vendors. Thus, Thai Express’s policy is to only do business with vendors who have shown to Thai Express that their business practices are lawful and ethical, and Thai Express expects its vendors to take steps to ensure the same of their own supply chains. Specifically, Thai Express will not conduct business with vendors employing persons under the age of 14, or in/under prison, indentured or bonded labor, or slave labor; benefitting from human trafficking; using corporal punishment or other forms of mental and physical coercion as a form of discipline; or providing or supplying goods or services tainted by any of the foregoing practices.
In accordance with the California Transparency in Supply Chains Act of 2010, Thai Express makes the following disclosures:
Thai Express requires its vendors to certify that their business practices are lawful and ethical (including those provisions relating to human trafficking and slavery) and in compliance with Thai Express’s principles, and that they take steps to ensure the same of their own supply chains. To ensure accountability, Thai Express reserves the right to terminate its business relationship with any vendor who fails to provide such certifications or whose business practices, or the business practices of its own suppliers and subcontractors, are not lawful or ethical or in compliance with Thai Express’s principles. Thai Express also reserves the right to terminate its business relationship with vendors who fail to provide written confirmation to Thai Express that they have a program in place to monitor their suppliers and subcontractors for compliance with law, good ethics, and Thai Express’s principles. Thai Express reserves the right to conduct verification and audits (including third-party verification and audits) of its suppliers regarding human trafficking and slavery. Thai Express has conducted general audits of certain of its suppliers, and has not observed violations with respect to human trafficking or slavery issues. Thai Express provides company employees and management who have direct responsibility for supply chain management with training on Thai Express’s business practices, vendor requirements, including those provisions relating to mitigating risks of human trafficking and slavery. Employees and management failing to meet Thai Express standards regarding slavery and trafficking are subject to disciplinary action.
We make no representations or warranties regarding the Online Services and the Materials.
WE DO NO WARRANT THAT OUR ONLINE SERVICES OR THE MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF OUR ONLINE SERVICES OR THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.
OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. 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 OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES.
IN NO EVENT SHALL WE, WHICH FOR AVOIDANCE OF DOUBT INCLUDES ANY OF OUR AFFILIATES, 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 OR THE RESULT OF YOUR USE OF OUR ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH OUR ONLINE SERVICES, INCLUDING, WITHOUT LIMITATION, LINKED SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE CONTENT, INFORMATION OR SERVICES FROM OUR ONLINE SERVICES RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
You agree to indemnify, defend, and hold harmless Thai Express, its Affiliates, its Providers, and its and their officers, directors, employees, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms and Conditions of Use; and/or (2) your activities in connection with the Online Services, and the Materials, programs, offers, features, and services made available through the Online Services.
To the extent there are any conflicts between the language below and the remainder of our Terms, the language below shall govern.
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 MTY FRANCHISING USA, INC., 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: MTY FRANCHISING USA, INC., 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 loyalty or rewards account (if applicable), 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.
The Online Services are controlled, operated, and administered by us and our service providers from offices within the United States. We make no representation that Materials on the Online Services are appropriate or available for use at other locations outside of the United States, and access to them from territories where their contents are illegal is prohibited. You may not use the Online Services or export the Materials in violation of U.S. export laws and regulations. If you access the Online Services from locations outside of the United States, you are responsible for compliance with all local laws. These Terms and Conditions of Use and our Privacy Policy shall be governed by the laws of the State of Arizona, U.S.A., without regard to conflict of laws provisions or principles.
Neither these Terms and Conditions of Use, nor any Materials, programs, offers, features, or services of the Online Services, create any partnership, joint venture, employment, or other agency relationship between Thai Express, its Affiliates, and you. You may not enter into any contract on our behalf or bind us in any way.
You agree that Thai Express may, in its sole discretion and without prior notice, block and/or terminate your access to any or all of the Online Services if we determine that you have violated these Terms and Conditions of Use or other agreements or guidelines that may be associated therewith. You also agree that any violation, or threatened violation, by you of these Terms and Conditions of Use constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to us, at minimum. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
If we take legal action against you as a result of your violation of these Terms and Conditions of Use, 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 Thai Express and its Affiliates 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 and Conditions of Use.
These Terms and Conditions of Use, together with our Privacy Policy and any other applicable terms included within the Online Services, and/or the Materials, programs, offers, features, and services made available through the Online Services, as each is currently posted on the Online Services, constitute the entire agreement between us and you with respect to your use of the Online Services and the Materials, and supersede all previous written or oral agreements between us and you with respect to such subject matter. Any cause of action you may have arising out of or relating in any way to the Online Services must be commenced within one (1) year after the claim or cause of action arises. If, for any reason, a court of competent jurisdiction finally determines any provision of these Terms and Conditions of Use, our Privacy Policy, or any portion thereof to be unenforceable, such provision shall be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions of Use and Privacy Policy shall continue in full force and effect. Our failure to enforce any part of these Terms and Conditions of Use shall not constitute a waiver of any of our rights under these Terms and Conditions of Use, 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 and Conditions of Use. A specific, written waiver signed by an authorized representative of Thai Express may only provide a legal waiver
If you have any questions about Online Services or these Terms and Conditions of Use, or to report violations of these Terms and Conditions of Use, please contact us at:
MTY FRANCHISING USA, INC.
9311 E. Via de Ventura
Scottsdale, AZ 85258
866-452-4252
kahala.customerservice@mtygroup.com
© 2018 MTY FRANCHISING USA, INC. All rights reserved.