These Terms of Use (“Terms“) apply to the Fresh Thyme website located at www.freshthyme.com and all other sites, mobile sites, services, applications, platforms and tools where these Terms appear or are otherwise referenced, or for which no separate terms are provided as well as your visits to or interactions with us in any of our stores or elsewhere (collectively, the “Site“). These Terms are between Lakes Venture, LLC d/b/a/ Fresh Thyme Market (together with its affiliates, “Fresh Thyme,” “we,” “us,” or “our“) and the person accessing or using the Site.
Please read these Terms and our Privacy Policy carefully and if you do not agree with these Terms or Privacy Policy, do not access or use the Site
You represent that you are a natural person over eighteen (18) years of age. You further represent that you may legally enter into these Terms and that you agree with these Terms. You agree to review these Terms and Fresh Thyme’s Privacy Policy frequently in order to notify yourself of any changes as Fresh Thyme may make changes at any time. Fresh Thyme will post all such changes on the Site and all changes will be effective immediately upon posting. Material changes will be conspicuously posted on the Site. By accessing or using the Site after changes are posted, you agree to those changes.
ARBITRATION NOTICE: These Terms contain a binding arbitration provision. You agree that, except for certain types of disputes described in the arbitration provision below, all disputes between you and FRESH THYME will be resolved by mandatory binding arbitration and you waive any right to participate in a class action lawsuit or class-wide arbitration.
1. Privacy Policy
Fresh Thyme’s Privacy Policy describes how your personal information and other information is collected, used, and shared and is hereby incorporated by reference into these Terms.
2. Intellectual Property Rights
This Site, including its text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, data, trademarks, logos, slogans, names of products and services, documentation, other components, content, and tools, and the design, selection, and arrangement of content is exclusively the property of Fresh Thyme or, as applicable, its third-party vendors and licensors. The Site may contain references to third-party marks and copies of third-party copyrighted materials, which are the property of their respective owners. The Site is protected by copyright, trademark, and other intellectual property laws. Any unauthorized use of any trademarks, trade dress, copyrighted materials, or any other intellectual property belonging to Fresh Thyme or any third party is strictly prohibited and may be prosecuted to the fullest extent of the law. There are no implied rights or licenses granted to you or any other person in these Terms. All rights are reserved.
3. Availability, Inaccuracies, Quantity Limits
While we try to provide the Site error-free, we do not guarantee that the Site or its content are complete, current, or error-free (including, without limitation, content related to product availability, specifications, features, or prices). We therefore reserve the right to revoke offers, cancel orders, correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order). Please note that such errors, inaccuracies, or omissions may relate to product image, product description, pricing, and availability. Pricing may vary based on the store selected.
We reserve the right to limit quantities to normal retail purchases (including after you submitted your order). Additionally, Fresh Thyme reserves the right not to sell any products to individuals or businesses that appear to be resellers (as determined in Fresh Thyme’s sole discretion).
4. Returns
You may return items in accordance with our Return Policy.
5. Use of the Site
Personal Use
Except as may be otherwise expressly permitted by these Terms, you may download and print one copy of the Site’s visible content only for your own personal non-commercial use, provided you do not modify or delete any copyright, trademark, attribution, or proprietary notices
Limited Additional Uses
Additionally, if you are a writer, blogger, journalist, educator, or student, you may download, copy, and use the Site’s contents and Fresh Thyme’s names, logos, service marks, and trademarks that appear on the Site (together, “Fresh Thyme Marks”) solely for purposes of including those items in articles or academic materials, as applicable, created or prepared by you for purposes of your work as a writer, blogger, journalist, educator, or student, provided that you do not remove any copyright, trademark, attribution, proprietary, or other notices in or on those items, that you attribute the Site contents and Fresh Thyme Marks to Fresh Thyme as may be required by Fresh Thyme, and that you use those contents and Fresh Thyme Marks in compliance with applicable laws and regulations. YOU UNDERSTAND AND AGREE THAT YOU WILL NOT USE FRESH THYME MARKS ON OR WITH ANY GOODS OR SERVICES AND WILL NOT USE FRESH THYME MARKS TO INDICATE THE SOURCE OR ORIGIN OF ANY GOODS OR SERVICES. YOU FURTHER AGREE NOT TO ALTER OR MODIFY FRESH THYME MARKS IN ANY WAY, FOR EXAMPLE, BY CHANGING THE COLORS OR DIMENSIONS OF ANY FRESH THYME LOGO. If so required by Fresh Thyme, you will use Fresh Thyme Marks only together with notices as Fresh Thyme may from time to time require, including without limitation the ® or the TM symbols. You understand and agree that the rights granted herein are fully revocable by Fresh Thyme, with or without notice. If Fresh Thyme revokes your rights, or terminates these Terms, your rights with respect to the Site’s contents and Fresh Thyme Marks are immediately terminated. In such case, you will immediately cease all copying, distribution, and other use of the Site contents and Fresh Thyme Marks, you will promptly remove the Site contents and Fresh Thyme Marks from any materials in your possession or control, and you will promptly confirm to Fresh Thyme in writing that you have done all of the foregoing.
6. Limitations on Use; Compliance with Laws Your use of the Site must conform to the following:
Your use of the Site will at all times comply with all applicable local, state, and federal laws, rules and regulations. You may not use the Site for unlawful purposes.
You will not copy, reproduce, display, duplicate, redistribute, sell, publish, post, license, rent, modify, translate, adapt, reverse-engineer, or create derivative works of any part of the Site, or any materials appearing on or visible through the Site, except as otherwise expressly permitted by these Terms without the prior written consent of Fresh Thyme.
Unless you operate a legitimate internet search engine, you agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “scrapers,” web crawlers, indexing agents, and other automated programs and devices to access, use, or copy any portion of the Site.
You will not obtain or attempt to obtain any personally identifiable information from any other users or third parties from or using the Site.
You agree not to circumvent, disable, or otherwise interfere with security-related features of the Site. User activities that aim to render the Site or associated services inoperable or to make their use more difficult are prohibited.
You may not use the Site to post or transmit any material that contains any viruses, Trojan horses, worms, time bombs, cancelbots, malware, adware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, personal information, or other data.
You will not impersonate any third party or interfere with any third party’s use of the Site.
You will not submit inaccurate information via the Site, commit fraud or falsify information in connection with your use of the Site, or act maliciously against the business interests or reputation of Fresh Thyme.
7. Your Fresh Thyme Customer Account
You may use the Site as a guest, but you will not be able to use all features of the Site. You may be required to either set up an online Fresh Thyme customer account in order to use or redeem coupons, create shopping lists, and to use certain other features of the Site. You will be required to submit certain information to set up your account and will be required to establish a username and password. You are responsible for complying with all applicable laws, regulations, and policies of all relevant jurisdictions, including all applicable local rules regarding online conduct in connection with your Fresh Thyme customer account. Fresh Thyme will presume, and you warrant, that any information received from or about you through your access to or use of the Site, including through the Fresh Thyme customer account creation process, is accurate, complete, current, and authorized by you. You agree not to contest the validity and binding legal effect of those communications and information. You understand and agree that perfect security does not exist anywhere, and you will therefore protect your personal information and information associated with your Fresh Thyme customer account, including without limitation your username and password, in a reasonable way at all times. You will not transfer your Fresh Thyme customer account to or share your Fresh Thyme customer account with any other person. Your Fresh Thyme customer account is personal to you. You will promptly notify Fresh Thyme of any unauthorized use of your Fresh Thyme customer account or Site contents that becomes known to you. If you create a customer account, we may collect and store information about your purchases, including to provide you functionality, more relevant mobile coupons and offers, and as otherwise described in our Privacy Policy. By creating a customer account, you agree that we may collect information about purchases you have made while signed into or using your Fresh Thyme customer account and when using a payment card that you have used previously while signed into your Fresh Thyme customer account.
8. Sweepstakes & Promotions
To participate in any sweepstakes or promotions that Fresh Thyme may make available, you may be required to provide additional information. Additional terms and eligibility criteria may apply to your participation.
9. Text Message Program Terms
BY PARTICIPATING IN A TEXT MESSAGE PROGRAM, YOU ARE AGREEING TO THE ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY SECTION OF THESE TERMS AS WELL AS THE REST OF THE TERMS HEREIN, INCLUDING THE LIMITATION OF LIABILITY.
We may offer our customers mobile alerts regarding sales, promotional events, new product releases, loyalty program alerts, cart reminders by SMS message (each a “Text Message Program“). By participating in a Text Message Program, you acknowledge your personal information is subject to our Privacy Policy.
Signing Up and Opting Into a Text Message Program
Enrollment in a Text Message Program requires you to provide your mobile phone number and to agree to these Terms. You may not enroll if you are under eighteen (18) years old (or the applicable age of majority in your home state) or if you do not agree to the terms of these Terms. We reserve the right to stop offering a Text Message Program and/or terminate your participation in a Text Message Program at any time with or without notice.
By opting into a Text Message Program, you:
Authorize us to use auto dialer or non-auto dialed technology to send recurring text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).
Acknowledge that you do not have to consent to receive text message advertisements as a condition of purchasing goods or services.
Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt into the Text Message Program.
Consent to the use of an electronic record to document your opt-in.
While you consent to receive messages sent using automated technology, these Terms shall not be interpreted to suggest or imply that we send any or all of our text messages using an automatic telephone dialing system (or other automated technology, as defined under applicable laws).
Content You May Receive
Once you opt-in to a Text Message Program, your message frequency may vary. You may receive alerts about, marketing, offers and promotional events, product release, reminders, and alerts.
Opting Out and Seeking Assistance
You may opt out of receiving text messages from us at any time by texting “STOP” to any of the text messages you have received from us. For a Text Message Program operated through a different number, text STOP to that number to opt out. Your opt-out request may generate either a confirmation text or a text request to clarify the Text Message Program to which it applies (if you have subscribed to more than one). To complete your opt-out, please provide the requested clarification. You acknowledge that the text message platform may not recognize and respond to unsubscribe requests that do not include the “STOP” keyword commands and agree that we and our service providers will have no liability for failing to honor such texts that do not contain such keyword commands. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from a Text Message Program list, is not a reasonable means of opting out. These Terms will still apply if you withdraw the consent mentioned above or opt out of a Text Message Program. If you need assistance at any time, or you forget what keywords are supported, just text “HELP” to the number sending the text message you received.
Cost and Frequency of Messages
Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone’s pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data, or other charges incurred (usage, subscription, etc.) as a result of using a Text Message Program.
Text Message Programs are offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage, or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with a Text Message Program.
Supported Carriers
A Text Message Program may not be available on all wireless carriers. We may add or remove any wireless carrier from a Text Message Program at any time without notice. We and mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages.
Changing Your Phone Number
If you change, forfeit, or deactivate the phone number you provided to us for a Text Message Program, you agree to notify us immediately of such change or to unsubscribe from the Text Message Program prior to changing, forfeiting, or deactivating the phone number. Failure to do so constitutes a material breach of these Terms. To notify us or find out more information on our text message marketing programs, Contact Us.
10. Career Opportunities
The Site may allow you to submit job applications (including uploading a resume and other materials) for posted career opportunities at Fresh Thyme. You will not submit a job application or upload a resume or other materials for any person other than yourself. You warrant that all information contained in any job application, resume, and other materials you provide is current, accurate, and complete. Your submission of a job application does not in any way require Fresh Thyme to review materials or consider you for employment. Career opportunity descriptions on the Site are subject to change at our sole discretion without notice.
11. Supplier Portal
You acknowledge and agree that Fresh Thyme may utilize a third party (currently designated as Radian Group, Inc., hereinafter “Radian”) to host, maintain, manage, and provide the services by and through the supplier portal (the “Supplier Portal”).
You acknowledge that Fresh Thyme and/or Radian owns all right, title, and interest, including all intellectual property rights, in and to the Supplier Portal. Fresh Thyme acknowledges that, as between Fresh Thyme and Supplier, Supplier owns all right, title, and interest, including all intellectual property rights, in and to the Supplier Data, subject to the license granted herein. “Supplier” means the individual or entity that accesses or uses the Supplier Portal to provide goods or services to Fresh Thyme. “Supplier Data” means information, data, and other content, that is submitted by Supplier through the Supplier Portal. Supplier Data does not include aggregate information. Supplier hereby grants to Fresh Thyme a non-exclusive, royalty-free, perpetual, worldwide license to reproduce, distribute, aggregate and otherwise use and display the Supplier Data and process the Supplier Data.
You represent, warrant, and covenant that (i) you (on behalf of yourself and Supplier) own or otherwise have and will have all necessary rights, permissions, and consents in and relating to the Supplier Data so that, as received by Fresh Thyme and processed in accordance with these Terms, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party or violate any applicable law. Supplier Data must not include any personal information.
You acknowledge and agree that Fresh Thyme may aggregate and anonymize Supplier Data or your data in connection with the use of the Supplier Portal. Such aggregated and anonymized data shall not at any time include any personal or personally identifiable information or information. All such aggregated data shall be owned by Fresh Thyme.
12. Term
These Terms will continue until terminated by you or Fresh Thyme as permitted by these Terms. You may terminate these Terms at any time and for any reason or no reason by ceasing all access to and use of the Site and its contents. Fresh Thyme may terminate these Terms and your access to and use of the Site at any time and for any reason or no reason, without notice or liability, including if you breach these Terms. Upon any termination of these Terms you must promptly cease accessing and using the Site. Any provisions of these Terms that are intended to survive termination (including without limitation any provisions regarding indemnification, limitation of our liability, and dispute resolution) will continue in effect beyond any termination of these Terms or of your access to or use of the Site.
13. DISCLAIMER OF WARRANTIES
FRESH THYME PROVIDES THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OR ASSURANCES OF AVAILABILITY OR USABILITY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESH THYME HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEAL, USAGE OR TRADE, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND THOSE REGARDING FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, QUALITY, ACCURACY, COMPATIBILITY WITH ANY STANDARDS OR USER REQUIREMENTS, NON-INFRINGEMENT, AND TITLE. FRESH THYME DOES NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS IN THE SITE WILL BE CORRECTED. FRESH THYME IS NOT RESPONSIBLE FOR ANY CONTENT, PROGRAM, TOOL, OR APPLICATION IN CONNECTION WITH THE SITE OR FOR ANY ACTION TAKEN IN RELIANCE THEREON. IN ADDITION, FRESH THYME WILL NOT BE LIABLE TO YOU FOR ANY INTERCEPTION OF ONLINE COMMUNICATIONS, SOFTWARE OR HARDWARE ISSUES (INCLUDING WITHOUT LIMITATION VIRUSES, OTHER HARMFUL CONDITIONS OR COMPONENTS, LOSS OF DATA, AND COMPATIBILITY CONFLICTS), OR OTHER CONSEQUENCES OF YOUR ACCESS TO OR USE OF THE SITE. FRESH THYME HAS NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATION. YOUR USE OF THE SITE IS AT YOUR OWN RISK AND YOU, ALONE, ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, SOFTWARE, SYSTEMS, AND NETWORKS, ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY INFORMATION FROM THE SITE, AND FOR ANY OTHER DAMAGE THAT MAY BE INCURRED. WE MAKE NO REPRESENTATION THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OTHER THAN THE UNITED STATES. IF YOU CHOOSE TO ACCESS THE SITE FROM LOCATIONS OTHER THAN THE UNITED STATES, YOU DO SO AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH APPLICABLE LAWS AND REGULATIONS. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM FRESH THYME OR IN ANY MANNER FROM THE SITE CREATES ANY WARRANTY.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FRESH THYME, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, LICENSORS, SUPPLIERS, CONTRACTORS, REPRESENTATIVES, OR EMPLOYEES (“FRESH THYME PARTIES”) BE LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES, OR ANY OTHER DAMAGE OR LOSS OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE (INCLUDING WITHOUT LIMITATION THE INPUT OF PERSONALLY IDENTIFIABLE AND OTHER INFORMATION INTO THE SITE), HOWEVER AND WHEREVER ARISING, WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF A FRESH THYME PARTY HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE DAMAGE OR LOSS. YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP ACCESSING AND USING THE SITE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE TOTAL LIABILITY OF THE FRESH THYME PARTIES UNDER THESE TERMS OR REGARDING THE SITE EXCEED ONE HUNDRED DOLLARS ($100), EVEN IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF CERTAIN DAMAGES SO SOME OF THE FOREGOING MAY NOT APPLY TO YOU. YOU AND FRESH THYME AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. Indemnification
You will indemnify, defend, and hold harmless the Fresh Thyme Parties from and against any claims, demands, losses, liabilities, complaints, actions, damages, judgments, settlements, fines, penalties, expenses, and costs, including reasonable attorneys’ fees, due to or arising out of your access to or use of the Site, your misuse of any material, data, or other information downloaded or otherwise obtained from the Site, your order of products or services via the Site, your breach of these Terms, or your violation of any law, regulation, or rights of any third party. We reserve, and you grant to us, the exclusive right to assume the defense and control of any matter subject to indemnification by you.
16. Third-Party Websites
You understand and agree that when using the Site you may be exposed to information from a variety of sources and that Fresh Thyme is not responsible for the accuracy, content, usefulness, safety, or intellectual property rights of or relating to such information. Additionally, the Site may link to, or be linked to, websites not maintained or controlled by Fresh Thyme. Those links are provided as a convenience and Fresh Thyme is not responsible for examining or evaluating the content or accuracy of, and does not warrant or endorse, any third-party website or any products or services made available through those websites. Please take care when leaving the Site to visit a third-party website. You should read the terms of use and privacy policy for each website that you visit.
17. Feedback
Fresh Thyme welcomes comments, reviews and other feedback (“Feedback”) regarding the Site. You agree that any Feedback you provide will be
Accurate and will not violate or facilitate the violation of law;
Cause injury to any person or entity; and
Will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading.
If you submit Feedback to us regarding the Site, via email or otherwise, it will not be considered or treated as confidential. You warrant that you have all rights necessary to submit any Feedback. We may use any Feedback that you send us in our discretion and without attribution or compensation to you. For any Feedback you submit, you grant to us a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such Feedback and incorporate such Feedback into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to you.
18. Governing Law
Except as provided in Section 19 below, these Terms of Use shall be interpreted and governed by the applicable laws of the State of Illinois without regard to choice-of-law principles.
19. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Arbitration Agreement
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND FRESH THYME, INCLUDING ANY PRODUCTS OR SERVICES OFFERED OR SOLD BY FRESH THYME OR THE FRESH THYME PARTIES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS OF USE, YOU AND FRESH THYME AGREE THAT EACH IS WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY. This paragraph may be referred to as the Arbitration Agreement in these Terms of Use.
Class Action and Mass Action Waiver
YOU AND FRESH THYME AGREE THAT ANY ARBITRATION REQUIRED BY THE ARBITRATION AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. You and Fresh Thyme each agree to waive the right to have any dispute or claim subject to the Arbitration Agreement brought, heard, administered, resolved, or arbitrated as a class arbitration, class action, collective action, or Mass Action to the maximum extent permitted by law. “Mass Action” means a situation in which a party is represented by a law firm or other representative, or a collection of law firms or other representatives, that has initiated more than one hundred (100) arbitration Demands with common questions of law or fact against Fresh Thyme within 180 days of initiating your arbitration Demand. This paragraph may be referred to as the “Class Action and Mass Action Waiver” in these Terms of Use. Nothing in these Terms of Use precludes you from bringing issues to the attention of federal, state, or local government agencies and, if the applicable law allows, such agencies may seek relief against Fresh Thyme for you.
Initiating a Demand for Arbitration
Any arbitration required by the Arbitration Agreement shall be initiated by You or Fresh Thyme by sending the other a written demand for arbitration (“Demand”) only via first-class mail, FedEx, or UPS within the statute of limitations period. Your Demand shall be delivered to: Lakes Ventures, LLC, Legal Department, 2650 Warrenville Road, Suite 700, Downers Grove, IL 60515. The Demand must include (i) the name, telephone number, mailing address, and email address of the person or entity seeking arbitration; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy; (iv) the original personal signature of the party seeking arbitration; and (v) the original personal signature of any legal counsel or other representative purporting to represent the party seeking arbitration. For purposes of this paragraph, “original personal signature” does not include any digital, scanned, electronic, copied, or facsimile signature. An original personal signature on the Demand certifies the following: (i) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (ii) the claims and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. The original personal signature by the party seeking arbitration shall verify under penalty of perjury that the factual statements contained in the Demand are true and correct. Compliance with this paragraph tolls any applicable statute of limitations as to any dispute or claim subject to the Arbitration Agreement that is stated in the Demand.
Filing a Demand for Arbitration
A party seeking arbitration of any dispute or claim subject to the Arbitration Agreement shall submit a copy of the Demand to the American Arbitration Association (“AAA”) sixty (60) or more days after the Demand is initiated pursuant to these Terms of Use. The arbitration will be administered by the AAA pursuant to the current AAA Consumer Arbitration Rules, except for Suppliers and to the extent modified by these Terms of Use. The AAA rules and instructions are available on the AAA website at www.adr.org/consumer.
Conduct of Arbitration
In any arbitration of a dispute or claim that is subject to the Arbitration Agreement:
You or Fresh Thyme may file such dispositive motions as would be permitted by the Federal Rules of Civil Procedure without obtaining permission from the arbitrator. Upon the filing of any dispositive motion, the arbitrator may stay all further action and deadlines in the arbitration until deciding such motion.
The parties shall have the right to conduct such discovery from the opposing party or any third party that is proportional to the needs of the claim or dispute, considering the importance of the issues at stake, the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Proportionality shall be decided by the arbitrator when requested by either party.
The arbitrator shall conduct any calls, conferences, or hearings by teleconference or videoconference, unless the arbitrator determines that an in-person hearing is appropriate. Any in-person hearing will be held at a location that is reasonably convenient. You and an employee of Fresh Thyme shall attend all arbitrator calls, conferences, and hearings.
A party may make a written offer of judgment at least seven (7) days before the date set for the arbitration hearing.
If the arbitrator finds that a party’s claim, counterclaim, or appeal was frivolous, asserted in bad faith, or pursued for purposes of harassment, the arbitrator shall award the opposing party its attorneys’ fees, costs, and expenses and all amounts charged by AAA for the arbitration.
The arbitrator will follow these Terms of Use and the law. The arbitrator shall not have the authority to commit errors of law or legal reasoning. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual party’s claim. The arbitrator may not award relief for or against anyone who is not a party, though the individual relief awarded by the arbitrator may incidentally affect non-parties.
You or Fresh Thyme may appeal an arbitration award that manifestly disregards the law by filing a notice of appeal with the AAA within 30 days after an award is rendered and delivered to the parties. The appeal shall be heard by a single arbitrator unless the parties agree to a multi-arbitrator appellate panel. The arbitrator(s) assigned to the appeal shall be selected by agreement of the parties from among those on the AAA Appellate Panel. If the parties are unable to agree, AAA shall appoint the arbitrator(s) from among those on the AAA Appellate Panel. An arbitrator who previously presided over any aspect of a case shall be ineligible from serving as an appellate arbitrator in that same case. The appeal, including briefing, shall be conducted pursuant to the parties’ agreement or the appellate arbitrator(s)’ orders if the parties are unable to agree.
Process for Arbitration Bellwether Demands
If twenty-five (25) or more Demands for arbitration of a dispute or claim subject to the Arbitration Agreement are initiated (i) that involve common questions of law or fact and (ii) where the initiating parties are represented by the same law firm, the same group of coordinated law firms, or the same representative, then such Demands shall be coordinated pursuant to this paragraph. The group of claimants and group of respondents shall each select five (5) Demands, for a total of ten (10), to be filed with AAA (collectively the “Bellwether Demands”). Each of the Bellwether Demands shall be assigned by AAA to a different arbitrator chosen from its national roster. After ninety (90) days from the date all Bellwether Demands have been arbitrated and any appeals exhausted, any remaining Demands subject to this paragraph may be filed with AAA. The AAA Supplementary Rules for Multiple Case Filings shall apply to the extent they are not inconsistent with this paragraph. Notwithstanding any other provision in the Terms of Use, You and Fresh Thyme agree that a court of competent jurisdiction shall have authority to enforce the terms of this paragraph with injunctive or other relief.
Severability
If (i) any dispute or claim subject to the Arbitration Agreement is filed as a class arbitration, class action, collective action, representative action, or Mass Action and (ii) if the Class Action and Mass Action Waiver is held invalid or unenforceable as to such dispute or claim, then the Arbitration Agreement does not apply to that dispute or claim and such dispute or claim must be brought in a court of competent jurisdiction. If any provision of Section 19 other than the Class Action and Mass Action Waiver is held invalid or unenforceable as to a particular dispute or claim, then such provision shall be severed from the Terms of Use, and the remainder of the Terms of Use shall be enforceable to the maximum extent permitted by law.
Applicable Law
The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Section 19. If the FAA is found not to apply to any portion of Section 19 of these Terms of Use, then the applicable laws of the State of Illinois shall apply without regard to choice-of-law principles.
Time Limitation on Claims
Arbitration proceedings must be initiated within one (1) year after any Dispute arises; otherwise, the Dispute is permanently barred.
20. Assignment
Neither these Terms, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior written permission of Fresh Thyme. Any purported assignment without such permission will be void. These Terms may be assigned by Fresh Thyme in whole or in part without notice.
21. Third-Party Beneficiaries
These Terms do not confer any rights, remedies, or benefits upon any person other than you and Fresh Thyme, except that our affiliates are third-party beneficiaries of these Terms.
22. Entire Agreement; Interpretation
These Terms, including our Privacy Policy and, as applicable and any other items incorporated herein, are the entire agreement between the parties with respect to their subject matter and supersede any and all prior or contemporaneous or additional communications, negotiations, and agreements with respect thereto. Any Fresh Thyme waiver of any rights under these Terms must be in writing, signed by Fresh Thyme, and any such waiver will not operate as a waiver of any future breach of these Terms. In the event any portion of these Terms is found to be illegal or unenforceable, such portion will be severed from these Terms and the remaining provisions will be separately enforced. The headings in these Terms are for convenience only and do not affect the interpretation of these Terms. These Terms inure to the benefit of Fresh Thyme’s successors and assigns.
23. Electronic Communications
These Terms and any other documentation, agreements, notices, or communications between you and Fresh Thyme may be provided to you electronically to the extent permissible by law. Please print or otherwise save a copy of all documentation, agreements, notices, and other communications for your reference.
24. Contact Us
If you have any questions or comments about Fresh Thyme, the Site, or these Terms, you may contact Fresh Thyme at:
