Effective Date: September 1, 2024
UNDER THESE TERMS & CONDITIONS, YOU ARE AGREEING TO BINDING ARBITRATION AND A CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. OVERVIEW
These SMS Terms & Conditions (the “SMS Terms”, “Terms”, or “Terms & Conditions”) govern all communications to or from Applebee’s Restaurants LLC and its subsidiaries and affiliates (referred to collectively as “Applebee’s”, “Company”, “we”, “us”, or “our”).
Communications include, without limitation, those made from or on behalf of Applebee’s through the use of short messaging service (“SMS”), multimedia messaging service (“MMS”), over-the-top messages including, but not limited to, iMessage, WhatsApp, and social media direct messaging (“OTT”), or successor protocols or technologies (collectively, “Message(s)”) relating to the Applebee’s SMS Program (the “SMS Program”).
2. AGREEMENT DETAILS & NOTICES
Consent to Receive Messages
By signing-up for the SMS Program, you are agreeing to receive ongoing and recurring informational and/or marketing Messages from Applebee’s and/or third parties acting on our behalf at the telephone number(s) you provide including, but not limited to, Messages sent using an autodialer and/or any other automated system or method. These Messages may include information about, but are not limited to, promotions, specials, offers, exclusive deals, events, your orders, your account, and/or your relationship with Applebee’s. You understand that you do not have to agree to receive automated marketing Messages as a condition of purchasing any goods or services. You acknowledge that Messages may be sent to your telephone number(s) even if your telephone number(s) is/are registered on any state or federal Do Not Call list. You agree to receive Messages from or on behalf of Applebee’s, even if you terminate your relationship with us, except if you opt out. You can stop receiving messages at any time by following the Opt-Out Instructions below. For help, text HELP in response to any Message from us or contact us at [email protected] or (866) 926-5019. Standard text messaging and data rates may apply through your service provider.
Provision of Telephone Numbers and Other Contact Information
You verify that any contact information you provide to Applebee’s and/or their respective agents and affiliates including, but not limited to, your name, mailing address, email address, and residential, business, and/or mobile telephone number(s), is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your account access and/or text program enrollment at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to any text message you receive from us. In the event that you get a new telephone number, you will need to contact us at [email protected] or (866) 926-5019.
Opt-Out Instructions
You may opt out of automated Messages by replying “STOP” to any Message you receive from us or by contacting us at [email protected] or (866) 926-5019. When opting out of Messages, you acknowledge and agree to accept a final Message confirming your opt-out; this Message may also seek to clarify the scope of your opt-out. It is your sole responsibility to notify us if you no longer want to receive automated Messages. You waive any rights to bring claims for unauthorized or undesired Messages by failing to opt out. Please allow up to ten (10) days (unless otherwise required by applicable law) to process any opt-out request. Please note that even if you opt out of automated Messages, we reserve the right to send non-automated Messages to you. It is possible that third parties may have your contact information, and you may continue to receive communications from these third parties despite an opt-out request. We are not responsible for unwanted contact from third parties. Please contact third parties directly to inform them of your communication preferences.
Call Recording and Monitoring
You acknowledge that all communications, including Messages to, from, or through Applebee’s and/or our authorized agents and affiliates, may be monitored and recorded, and you consent to such monitoring and recording.
Fees and Charges
There is no fee to receive automated Messages from us and our authorized agents and affiliates. However, you may incur a charge for these Messages from your telephone carrier or service provider, which is your sole responsibility. Messaging and data rates may apply. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Applebee’s and our authorized agents and affiliates are not responsible for such charges. Your obligations under this provision will survive termination of these Terms.
Unauthorized Use of Your Telephone Device
You must notify us immediately of any breach of security or unauthorized use of your telephone device. Although we and our authorized agents and affiliates will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for the losses of Applebee’s, our authorized agents and affiliates, or others due to such unauthorized use.
Your Indemnification to Us
You agree to indemnify Applebee’s and our authorized agents and affiliates for any privacy, tort, or other claims, including claims under the Federal Telephone Consumer Protection Act or any state law equivalents, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify us of any changes in your contact information, including telephone number. You agree to indemnify, defend, and hold us harmless from and against any and all such claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees). Applebee’s shall have the exclusive right to choose counsel, at your expense, to defend any such claims. Your obligations under this Section will survive expiration or termination of these Terms.
Release of Claims
In consideration of the services provided by Applebee’s, you hereby release Applebee’s and our authorized agents and affiliates from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities, or other harms resulting from or relating to Messages including, without limitation, any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
General
You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive Messages. Messaging may only be available to customers of select carriers with compatible handsets.
3. DISPUTE RESOLUTION
If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Applebee’s agree that we intend that this Section satisfy the “writing” requirement of the Federal Arbitration Act.
Binding Arbitration and Class Action Waiver
This Section applies to any dispute EXCEPT DISPUTES RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR OR APPLEBEE’S INTELLECTUAL PROPERTY RIGHTS. The term "dispute" means any dispute, action, or other controversy between you and Applebee’s arising out of or in connection with these SMS Terms and our Privacy Policy, your use and/or enrollment in the Applebee’s SMS Program, and/or your relationship with Applebee’s, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. The term "dispute" will be given the broadest possible meaning allowable under law.
Notice of Dispute
In the event of a dispute, you or Applebee’s must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Applebee’s, Attention: Legal Department, 10 West Walnut Street, 4th Floor, Pasadena, California 91103. Applebee’s will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Applebee’s will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or Applebee’s may commence arbitration.
Small Claims Court
Notwithstanding the foregoing, you may litigate any dispute (other than excluded disputes) in small claims court in your county of residence or Los Angeles County, California, U.S.A. if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
Binding Arbitration
If you and Applebee’s do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by individual confidential binding arbitration governed by the Federal Arbitration Act ("FAA"). Class arbitrations are not permitted. You are giving up the right to litigate disputes in court before a judge or jury (or participate in court as a party or class member). Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. You will have a reasonable opportunity to participate in the process of choosing an arbitrator. Any court with jurisdiction over the parties may enforce the arbitrator's award.
Class Action Waiver
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Applebee’s will seek to have any dispute heard as a class action, Private Attorneys General Act action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another, except as provided in subsection (f) below.Arbitration Procedure
Any arbitration will be conducted by JAMS under its comprehensive arbitration rules and procedures. If you are a consumer (as defined under JAMS rules), the JAMS Consumer Arbitration Minimum Standards will also apply, which include the right to an in-person hearing. If you are represented by counsel and/or a law firm who alone, or acting in coordination with other counsel/law firm(s), represent a total of five (5) or more claimants seeking to assert similar demands against Applebee’s or Related Parties (as defined by JAMS rules), JAMS Mass Arbitration Procedures and Guidelines shall apply.
You agree to commence arbitration only in your county of residence or in Los Angeles County, California, U.S.A. The arbitrator is authorized to award all relief, and only that relief, available under applicable law (i.e., the relief that would have been available to the parties had the dispute been heard in court), subject to these SMS Terms. Any exchange of information will adhere to the JAMS rules. The arbitrator's award will consist of a written statement providing for the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator's award shall be binding and may be entered as a judgment in a court of competent jurisdiction. For more information, review the JAMS website. You or Applebee’s may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect its rights or property pending the completion of arbitration.
If you are a consumer (as defined under JAMS rules) and you commence arbitration against Applebee’s, the only fee required to be paid is an initial case management fee which is approximately equivalent to current court filing fees. All other costs will be borne by Applebee’s. If Applebee’s commences arbitration against a consumer, Applebee’s will pay for all costs associated with the arbitration. If you are not a consumer, then you and Applebee’s each will pay a pro rata share of the arbitration costs. The parties are responsible for paying their own attorneys' fees. For arbitrations outside of California, the arbitrator shall have the authority to award attorneys’ fees and costs to the prevailing party if such an award is allowed by law. For arbitrations within California, the arbitrator shall have the authority to award attorneys’ fees and costs to a claimant who prevails against Applebee’s if such an award is allowed by law.
Claims or Disputes Must Be Timely Filed
To the extent permitted by law, any claim or dispute to which this Dispute Resolution provision applies must be filed within one year in small claims court pursuant to the Small Claims Court Section of these SMS Terms or in arbitration pursuant to Binding Arbitration Section of these SMS Terms, unless a longer limitations period for bringing such claims is provided by law. The limitations period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute is not filed within the relevant limitations period, it is permanently barred.
Conflict with JAMS Rules
These SMS Terms govern to the extent they conflict with JAMS Comprehensive Arbitration Rules and Procedures.
Severability
If the Class Action Waiver Section of these SMS Terms is found to be illegal or unenforceable as to all or some parts of a dispute, then it will not apply to those parts. Instead, those parts of the dispute will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Section is determined to be illegal or unenforceable, that determination will not affect the validity or enforceability of any other provision, all of which shall remain in full force and effect. If necessary to effectuate the intent of the parties to resolve a dispute through arbitration, a court of competent jurisdiction should reform this Agreement.
Injunctive Relief
The foregoing Sections of this Dispute Resolution provision will not apply to any legal action taken by Applebee’s to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to or arising out of any Messages, the Applebee’s SMS Program, and/or Applebee’s intellectual property rights (including any such rights Applebee’s may claim are in dispute), Applebee’s operations, and/or Applebee’s products or services.
Jurisdictional Issues
Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute or excluded dispute arising hereunder may only be instituted in state or federal court in California. Accordingly, you and Applebee’s consent to the exclusive personal jurisdiction and venue of such courts for such matters.
Governing Law
These SMS Terms and any additional terms will be governed by and construed in accordance with, and any dispute and excluded dispute will be resolved in accordance with the laws of the State of California, without regard to its conflicts of law provisions.
4. MISCELLANEOUS
Survivability
Any provisions of these Terms that are reasonably inferable to have been intended to survive termination (including, but not limited to, any provisions regarding limitation of our liability, indemnification, or dispute resolution) will continue in effect beyond any such termination of your participation in the SMS Program and/or your relationship with us.
Date When Changes are Effective, and Revisions
These SMS Terms & Conditions may change at any time. We will post the revision date with the revised SMS Terms & Conditions. The revised SMS Terms & Conditions will apply to you for any communications you receive after the revision date. So, please check back from time to time. Remember, you may always opt out of or unsubscribe from Messages by following the instructions in the “Opt-Out Instructions” Section above.