PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE DOWNLOADING, ACCESSING, OR USING ANY SUSHI AVENUE ONLINE SERVICES (AS DEFINED BELOW).
BY ACCEPTING THESE TERMS AND CONDITIONS OF USE, AS DETAILED IN SECTION XX BELOW, YOU AGREE TO RESOLVE ANY DISPUTE IN ANY WAY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OF USE, OUR PRIVACY POLICY, DATA SECURITY, OR DATA PRIVACY THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE PROCEDURES, UNLESS OTHERWISE PROVIDED BELOW, AND YOU AGREE TO WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION SUIT.
BY ACCEPTING THESE TERMS AND CONDITIONS OF USE, YOU ALSO AGREE TO OUR PRIVACY POLICY, LOCATED AT https://www.sushiavenue.com/privacy, WHICH IS INCORPORATED INTO THESE TERMS AND CONDITIONS OF USE AND MAY BE UPDATED FROM TIME TO TIME.
Table of Contents
I. Introduction
II. Modifications to the Terms and Conditions of Use
III. Use of Sushi Avenue Online Services
IV. User Conduct
V. Submissions
VI. Programs and Promotions; Digital Offers
VII. Copyright Infringement Notification
VIII. Third-Party Sites and Social Media Pages
IX. Privacy
X. Ownership of Intellectual Property
XI. Electronic Communications
XII. No Warranties
XIII. Limitations of Liability
XIV. Indemnification
XV. International Users and Choice of Law
XVI. Dispute Resolution, Binding Arbitration, and Class Action Waiver
XVII. No Agency Relationship
XVIII. Violations and Remedies
XIX. Entire Agreement, Claims Limitations, and Severability
XX. Contact Information
I. Introduction
These Terms and Conditions of Use ("Terms and Conditions of Use") apply to your access to, and use of, any Sushi Avenue, Inc. (“Sushi Avenue") website, mobile application, and online service or program where these Terms and Conditions of Use are posted, linked or incorporated by reference (“Sushi Avenue Online Services"). These Terms and Conditions of Use are a legal and binding agreement between you and Sushi Avenue, and, as applicable, its subsidiaries, affiliates, and related entities such as One Two Three Sushi, Inc. and Fusion Sushi, Inc. ("Affiliates") (Sushi Avenue 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 Sushi Avenue Online Services, which includes the programs, offers, content, information, services, and features made available through the Sushi Avenue Online Services. If you do not agree to these Terms and Conditions of Use, then you should not use the Sushi Avenue Online Services.
Your use of the Sushi Avenue Online Services is at your own risk. If you are dissatisfied with the Sushi Avenue Online Services in any way, your sole and exclusive remedy is to discontinue accessing and using the Sushi Avenue Online Services.
II. Modifications to the Terms and Conditions of Use
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 Sushi Avenue Online Services, along with the date on which it was most recently updated as indicated by the "Last Updated" notice above. Your continued access to or use of the Sushi Avenue 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.
III. Use of Sushi Avenue Online Services
The Sushi Avenue Online Services and all content, information, and other materials featured, displayed, contained, and available on the Sushi Avenue 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 by or licensed to Sushi Avenue and its Affiliates and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under United States and foreign laws. 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 Sushi Avenue Online Services for noncommercial purposes only. You may view, display, copy, download, and print the Materials solely for your own personal, noncommercial 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 Sushi Avenue 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 Sushi Avenue Online Services, the Materials, and/or the programs, features, and services.
The display of a menu item on the Sushi Avenue Online Services does not mean that the menu item is available as all items are subject to availability and available while supplies last. We make a reasonable and good-faith effort to display and describe the menu items available through the Sushi Avenue Online Services accurately and completely. However, the detail and accuracy of the images and specifications of menu items that you see will depend on a number of things. Consequently, we do not guarantee that the products, images, services or descriptions displayed or described to you are or will remain accurate or complete in every detail. Further, we may update the products, images, available features, services or specifications from time to time.
Sushi Avenue may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any of the Sushi Avenue Online Services, or any portion thereof; (2) change, revise, or modify the Sushi Avenue Online Services, the Materials, or any portion thereof; (3) interrupt the operation of the Sushi Avenue 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, features, and services, or restrict your access to the Sushi Avenue 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.
IV. User Conduct
You agree to use the Sushi Avenue Online Services, the Materials, and the programs, features and services, including, without limitation, ordering and delivery services, in accordance with these Terms and Conditions of Use and all applicable laws and regulations. You agree to remain courteous and respectful toward employees, contractors and agents of Sushi Avenue, its Affiliates, franchised Operators (as defined below), and partners and other users of the Sushi Avenue Online Services. 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 us, the Sushi Avenue Online Services, the Materials, our franchisees, our users, our brand, our Affiliates, or any other person or entity, or that violates these Terms and Conditions of Use, and/or applicable law. Sushi Avenue further reserves the right to terminate, suspend, or cancel your account, or otherwise refuse service, if Sushi Avenue believes that you have violated or acted inconsistently with these Terms and Conditions of Use, or 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.
Sushi Avenue shall be the sole arbiter in cases of suspected abuse, fraud, or violations of these Terms and Conditions of Use, and any decision it makes relating to termination or disabling of Sushi Avenue Online Services, or refusal to deliver any services shall be final and binding.
V. Submissions
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 Sushi Avenue 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 Sushi Avenue 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.
VI. Programs and Promotions; Digital Offers
Any programs, offers, sweepstakes, contests, raffles, surveys or other similar promotions (collectively, "Promotions") made available through the Sushi Avenue Online Services may also 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. Sushi Avenue urges 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.
You may receive digital offers through the Sushi Avenue Online Services from time to time. The following general terms apply to these offers:
VII. Copyright Infringement Notification
The Digital Millennium Copyright Act of 1998 (the "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 Sushi Avenue 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 https://www.copyright.gov/ for details.
If you believe that your work has been improperly copied and posted on the Sushi Avenue 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 Sushi Avenue Online Service and a description of where the Material that you claim is infringing is located within such Sushi Avenue 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:
Sushi Avenue, Inc.
ATTN: Legal - DMCA Manager
info@sushiavenue.com
895 Blue Gentian Rd. Suite 6
Eagan, MN 55121
651-294-7000
DMCA details are available at https://www.copyright.gov/onlinesp/.
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.
VIII. Third-Party Sites and Social Media Pages
The Sushi Avenue Online Services may contain links to other third-party websites, including the websites of Sushi Avenue restaurant Operators, and social media platforms, such as Facebook, Twitter, Instagram, 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. If you decide to visit any Linked Sites, you do so at your own risk. Sushi Avenue and its Affiliates 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 Linked Sites (including, without limitation, from Operators’ Linked Sites), 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.
IX. Privacy
Sushi Avenue's Privacy Policy applies to use of the Sushi Avenue 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 Sushi Avenue Online Services you agree to our handling of your personal information as described in our Privacy Policy.
X. Ownership of Intellectual Property
Sushi Avenue®, One Two Three Sushi®, Fusion Sushi®, Makia®, and other trademarks, service marks, and trade dress appearing on the Sushi Avenue Online Services are the trademarks or service marks of Sushi Avenue Properties, Inc. (“Sushi Avenue Properties") or its third-party licensors in the United States and other countries. Sushi Avenue is a licensee of Sushi Avenue Properties. The absence of a trademark notice or legend indicating the registration or ownership by Sushi Avenue Properties or such third-party licensor anywhere in the text of the Sushi Avenue Online Services does not constitute a waiver of that entity’s trademark or other intellectual property rights concerning that trademark or service mark used or referenced in the Sushi Avenue Online Services.
The Sushi Avenue Online Services, the Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on the Sushi Avenue Online Services (collectively, the “Sushi Avenue Intellectual Property") are owned by or licensed to Sushi Avenue Properties, One Two Three Sushi, or others with all rights reserved unless otherwise noted. We do not permit third parties to use Sushi Avenue 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 Sushi Avenue Online Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use Sushi Avenue Intellectual Property without our prior express written permission. You are strictly prohibited from using any Sushi Avenue Intellectual Property except as expressly provided in these Terms and Conditions of Use. You are also advised that Sushi Avenue Properties and/or its licensee(s) will aggressively enforce their intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
XI. Electronic Communications
When you visit the Sushi Avenue 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 Sushi Avenue 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 understand and agree that Sushi Avenue, its Affiliates or Providers, and anyone contacting you on their behalf, may send communications to you in any manner, including using a pre-recorded or artificial voice or an automatic telephone dialing system, including but not limited to communications concerning orders placed through your account on the Sushi Avenue Online Services.
XII. No Warranties
Sushi Avenue makes no representations or warranties regarding the Sushi Avenue Online Services and the Materials.
WE DO NOT WARRANT THAT THE SUSHI AVENUE 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 THE SUSHI AVENUE ONLINE SERVICES OR THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SUSHI AVENUE ONLINE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.
THE SUSHI AVENUE ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SUSHI AVENUE 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 THE SUSHI AVENUE ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SUSHI AVENUE ONLINE SERVICES.
XIII. Limitations of Liability
TO THE EXTENT PERMITTED BY LAW, YOU AND WE EACH AGREE TO LIMIT CLAIMS FOR DAMAGES, OR OTHER MONETARY RELIEF AGAINST EACH OTHER TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. NEITHER YOU NOR WE SHALL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. YOU AGREE SUSHI AVENUE IS NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY, BY ANY ACT OF NATURE, OR BY ANY CRIMINAL ACTIVITY BY SOMEONE UNRELATED TO SUSHI AVENUE.
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 SUSHI AVENUE ONLINE SERVICES AND THE MATERIALS, PROGRAMS, OFFERS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE SUSHI AVENUE 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, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
XIV. Indemnification
You agree to indemnify, defend, and hold harmless Sushi Avenue, 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 Sushi Avenue Online Services, and the Materials, programs, offers, features, and services made available through the Sushi Avenue Online Services.
XV. International Users and Choice of Law
The Sushi Avenue Online Services are controlled, operated, and administered by us and our service providers from offices within the United States of America. We make no representation that Materials on the Sushi Avenue 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 Sushi Avenue Online Services or export the Materials in violation of U.S. export laws and regulations. You represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties. If you access the Sushi Avenue Online Services from locations outside of the United States of America, you are responsible for compliance with all local laws. These Terms and Conditions of Use shall be governed by the laws of the State of Minnesota, U.S.A., without regard to conflict of laws provisions or principles.
XVI. Dispute Resolution, Binding Arbitration, and Class Action Waiver
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SUSHI AVENUE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION XVI OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
INDIVIDUALIZED DISPUTE RESOLUTION AND ARBITRATION. YOU AND WE EACH AGREE THAT ANY AND ALL CONTROVERSIES OR CLAIMS OF ANY NATURE, INCLUDING TORT AND STATUTORY CLAIMS, IN ANY WAY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OF USE, OUR PRIVACY POLICY, DATA SECURITY, OR DATA PRIVACY, INCLUDING ANY QUESTIONS OF ARBITRABILITY (REFERRED TO COLLECTIVELY AS A “DISPUTE”), SHALL BE SETTLED BY INDIVIDUAL BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BY A SOLE ARBITRATOR OR IN SMALL CLAIMS COURT. If you are an individual, then the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for consumer Related Disputes then in effect will apply. If you are a business or legal entity other than an individual, then the arbitration will be administered by AAA in accordance with the AAA’s Commercial Rules then in effect. Notwithstanding the foregoing, in any conflict between the AAA’s rules and these Terms and Conditions of Use, the Terms and Conditions of Use will govern. The AAA rules are available at www.adr.org. You and we each also agree that this Arbitration Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern any questions regarding the enforceability of this dispute resolution provision, including all questions of arbitrability (despite the general choice of law provision set forth above). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS ARBITRATION AGREEMENT AND CAN AWARD, ON AN INDIVIDUAL BASIS, THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
For any and all Disputes you have, you must first give us an opportunity to resolve your Dispute by sending a written description of your Dispute to Sushi Avenue, Inc., ATTN: Legal Department, 895 Blue Gentian Rd. Suite 6, Eagan, MN 55121 (“Notice of Dispute”). The Notice of Dispute must contain enough information for us to attempt to resolve your claim, including (a) your name; (b) your email address and telephone number; (d) a written description of the problem, relevant documents, and supporting information; and (e) a good faith calculation of the damages you claim to have suffered and a statement of the specific relief you are seeking. You may be represented by an attorney or other person in that process. However, if you choose to be represented by an attorney or other person, you must also submit with your Notice of Dispute a signed, written authorization allowing us to discuss your Dispute with your attorney or other representative.
You and we each agree to negotiate any Dispute between us in good faith for a sixty-day period. You and we each further agree that neither of us may commence any arbitration or small claims proceeding unless you and we are unable to resolve the Dispute within 60 days after receipt of the Notice of Dispute and the party who sent the Notice of Dispute has made a good faith effort to resolve the claim during that time.
If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a letter requesting arbitration and describing your claim to the following address: Sushi Avenue, Inc., ATTN: Legal Department, 895 Blue Gentian Rd. Suite 6, Eagan, MN 55121 and to the AAA. Notwithstanding the foregoing, if the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. Any dispute about whether a claim qualifies for small claims court will be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding will remain closed unless and until the small claims court issues a decision that the claim must proceed in arbitration.
The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. All arbitrators appointed pursuant to this process are subject to the disclosure and disqualification procedures set forth in the applicable AAA rules and any applicable state laws or rules.
If you are an individual, then the arbitration will be held virtually or in the city/county in which you reside. If you are a business or legal entity other than an individual, then the arbitration will be held in Eagan, Minnesota.
Payment of all filing, administration, and arbitrator fees will be governed by the applicable AAA rules. If you initiate an arbitration, you are required to pay AAA’s initial filing fee, but we will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county (or parish) of residence, subject to the restriction set forth in the following paragraph. Any facts, evidence, documents, or testimony introduced or produced in an arbitration proceeding may be used only in that proceeding and may not be disclosed, introduced, or used in another arbitration proceeding even if it involves the same or similar claims. We each also agree that the arbitrator will not be bound by rulings in any prior arbitrations not involving the same parties, even if they involved the same or similar claims.
An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. If the arbitrator finds that either the substance of your claim or the relief sought was frivolous, or that your claim was brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then we will not reimburse your initial filing fee and may seek an award of our legal fees or costs against you and/or your counsel. This Arbitration Agreement authorizes the arbitrator to award fees or other sanctions against your counsel. If you seek injunctive or declaratory relief, you agree that the arbitrator may award injunctive or declaratory relief in favor of you alone, and only to the extent necessary to resolve your individual claim.
The arbitrator will have the power to rule on their own jurisdiction, including any issues concerning the existence, validity, or scope of either this Arbitration Agreement, including whether any claim is subject to arbitration, provided that: (1) any dispute about whether a claim qualifies for small claims court will be resolved by that court, not by an arbitrator; and (2) a court will have the authority to determine whether the parties have complied with the informal dispute resolution procedures set out above and whether any claim you or we have filed in arbitration or in court is inconsistent with the Class Action Waiver included in these Terms and Conditions of Use.
WAIVER OF CLASS OR CONSOLIDATED ACTIONS (“CLASS ACTION WAIVER”). YOU AND WE EACH AGREE THAT YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS, AND NO PROCEEDINGS COMMENCED HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY OTHER PARTIES, OR CLAIMS BY OTHER PARTIES (WHETHER REPRESENTATIVE, MASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION). To the extent permitted by law, each party agrees that this limitation includes, but is not limited to, precluding each party from pursuing any claim for public injunctive relief, whether in arbitration or court. If we believe that any claim you have filed is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver.
If a court or arbitrator determines in an action between you and us that any part of this Arbitration Agreement cannot be enforced with respect to any claim, remedy, or request for relief, the rest of this Arbitration Agreement will continue to apply; provided, however, that if the Class Action Waiver is declared to be unenforceable or invalid, this entire Arbitration Agreement (other than this sentence) will not apply to that claim, remedy, or request for relief (but will still apply to any and all other claims, remedies, and requests for relief that you or we may assert in that or any other action). In any such case, you and we agree that we will arbitrate all claims, remedies, and requests for relief subject to individual arbitration first, and that any remaining unresolved claims, remedies, or requests for relief may be pursued in court only after the arbitrator’s award has been issued. In any such proceeding, the arbitrator’s factual findings will not be entitled to deference by the court.
XVII. No Agency Relationship
Neither these Terms and Conditions of Use, nor any Materials, programs, offers, features, or services of the Sushi Avenue Online Services, create any partnership, joint venture, employment, or other agency relationship between Sushi Avenue, its Affiliates, and you. You may not enter into any contract on our behalf or bind us in any way.
XVIII. Violations and Remedies
You agree that Sushi Avenue may, in its sole discretion and without prior notice, block, suspend, and/or terminate your access to any or all of the Sushi Avenue 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 Sushi Avenue. 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 Sushi Avenue takes 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 Sushi Avenue. You agree that Sushi Avenue will not be liable to you or to any third party for termination of your access to the Sushi Avenue Online Services as a result of any violation of these Terms and Conditions of Use.
XIX. Entire Agreement, Claims Limitations, and Severability
These Terms and Conditions of Use, together with our Privacy Policy and any other applicable terms included within the Sushi Avenue Online Services, and/or the Materials, programs, offers, features, and services made available through the Sushi Avenue Online Services, as each is currently posted on the Sushi Avenue Online Services, constitute the entire agreement between us and you with respect to your use of the Sushi Avenue 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 Sushi Avenue 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.
XX. Contact Information
If you have any questions about Sushi Avenue Online Services or these Terms and Conditions of Use, or you would like to report violations of these Terms and Conditions of Use, please contact us at:
Sushi Avenue, Inc.
895 Blue Gentian Rd. Suite 6
Eagan, MN 55121
Toll Free at 1-866-881-6428 or local 1-651-294-7000
https://www.sushiavenue.com/contact
Under California Civil Code Section 1789.3, California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (800) 952-5210.
