Drive-Thru on Demand Terms and Conditions of Use
Thank you for choosing Drive Thru on Demand (“Drive Thru on Demand”, “we”, “us”, “our”). By signing up or otherwise using the Drive Thru on Demand service, websites, and software applications (together, “Service”), or accessing any content or material that is made available by Drive Thru on Demand through the Service (the “Content”) you are entering into a binding contract with the Drive Thru on Demand entity indicated at the bottom of this document.
Please read the Agreements carefully. They cover important information about the Services provided to you and any charges, taxes, and fees we bill you. The Agreements include information about future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes.
Any information that you provided during sign-up can be corrected during the sign-up process by returning to the previous screens and correcting erroneous information.
In order to use the Service and access the Content, you need to (1) be eighteen (18) or older, or be thirteen (13) or older and have your parent or guardian’s consent to the Agreements (except as set forth in the chart below), (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in a country where the Service is available. You also promise that any registration information that you submit to Drive Thru on Demand is true, accurate, and complete, and you agree to keep it that way at all times.
2. Changes to the Agreements
Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through the Customer Service email address (email@example.com).
There is a convenience fee for each transaction on Drive Thru on Demand. For each order you place at any of our participating restaurants a flat rate convenience fee will be charged via your payment information submitted to Drive Thru on Demand. The convenience fee will be charged by Drive Thru on Demand on a per order basis with all participating restaurant regardless of the total amount of the order placed with the participating restaurant. The convenience will be no more than $2.99 per order at this time. Drive thru on Demand reserves the right to change the convenience fee At any time. Drive thru on Demand also reserve the right to charge different convenience fees at different restaurants and/or different cuisine types at any tIme. Anyone ordering on the Drive thru on Demand will Always know what the convenience fee amount is before they complete their order. The convenience fee will be added to the total meal receipt provided by the participating restaurant from which you placed an order.
Drive Thru on Demand reserves the right to administer a menu price bump from the price that the company receives from the restaurant for all menus on Drive Thru on the Demand . This increase in menu price will be considered earned compensation of the company and the company will carve off this amount at the time of transaction so that it can be deposited directly into the companies bank account. The restaurant will still receive 100% of their then menu price minus any and all customary transaction fees and credit card fees. The company will only receive the amount of the menu increase referred to as the percentage bump. Restaurant will also receive 100% of ALL sales taxes that are collected and will be required to pay said sales tax in the customary way. Restaurant will also receive 100% of any tip left by the consumer l, even if the tip is a percentage of the total sale that includes the menu price bump.
The percent menu bump will be charged by Drive-Thru on Demand on a per menu item basis with all participating restaurants regardless of the total amount of the order placed. The percent menu bump will be paid by the CUSTOMER and not the restaurant. The customer will see only the price of the menu item with the percent menu bump included. Drive Thru on Demand reserves the right to change the amount of the percentage that is charged for the percent menu bump at any time. Anyone ordering on Drive Thru on Demand will view the prices with the percent menu bump included. The percent menu bump will be built in each menu item and accounted for in the total meal receipt provided by the participating restaurant from where the order is placed. Anytime the restaurant changes any price on their menu, the price of the changed menu item will automatically reflect the menu price bump in the consumer app.
- Sign up Fee Refund Policy: You may request to cancel your sign-up with DTOD and get a full refund of the sign-up fee until you have submitted your menu and or 24 hours after signing up. No partial refund is available.
- Consumer Order Dispute and Refund Policy: Once an order has been accepted by a restaurant, you must contact the restaurant with any order discrepencies, refunds or mitigation with an order.
4. Rights We Grant You
The Service and the Content are the property of Drive Thru on Demand or Drive Thru on Demand’s licensors. We grant you a limited, non-exclusive, revocable license to make use of the Service, and a limited, non-exclusive, revocable license to make personal, non-commercial use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or Drive Thru on Demand. You promise and agree that you are using the Content for your own personal, non-commercial use and that you will not redistribute or transfer the Drive Thru on Demand Service or the Content.
The Drive Thru on Demand Software Application(s) and the Content are licensed, not sold, to you, and Drive Thru on Demand and its licensors retain ownership of all copies of the Drive Thru on Demand Software Application(s) and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
All Drive Thru on Demand trademarks, service marks, trade names, logos, domain names, and any other features of the Drive Thru on Demand brand (“Drive Thru on Demand Brand Features”) are the sole property of Drive Thru on Demand or its licensors. The Agreements do not grant you any rights to use any Drive Thru on Demand Brand Features whether for commercial or non-commercial use.
You agree to abide by our End User License Agreement and not to use the Drive Thru on Demand Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, Drive Thru on Demand grants no right, title, or interest to you in the Service or Content.
5. Third Party Applications
The Service is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Drive Thru on Demand does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
6. Rights You Grant Us
In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same. In any part of the Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed or provided to Drive Thru on Demand may contain advertising as part of the Content. In such cases, Drive Thru on Demand will make such Content available to you unmodified.
If you provide feedback, ideas or suggestions to Drive Thru on Demand in connection with the Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Drive Thru on Demand to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.
You grant Drive Thru on Demand a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.
7. User Guidelines
Drive Thru on Demand respects intellectual property rights and expects you to do the same. We have established a few ground rules for you to follow when using the Service, to make sure Drive Thru on Demand stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.
The following is not permitted for any reason whatsoever:
(i) copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Service or the Content, or otherwise making any use of the Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Service or the Content or any part of it;
(ii) using the Service to import or copy any local files you do not have the legal right to import or copy in this way;
(iii) transferring copies of cached Content from an authorized Device to any other Device via any means;
(iv) reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Service, Content or any part thereof unless permitted by applicable law;
(v) circumventing any technology used by Drive Thru on Demand, its licensors, or any third party to protect the Content or the Service;
(vi) selling, renting, sublicensing or leasing of any part of the Service or the Content;
(vii) circumventing any territorial restrictions applied by Drive Thru on Demand or it licensors;
(viii) artificially increasing play count or otherwise manipulating the Service by using a script or other automated process;
(ix) removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
(x) providing your password to any other person or using any other person’s username and password;
(xi) “crawling” the Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Drive Thru on Demand; or
(xii) selling a user account, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or the content included on an account.
Please respect Drive Thru on Demand, the owners of the Content, and other users of the Service. Do not engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:
(i) is offensive, abusive, defamatory, pornographic, threatening, or obscene;
(ii) is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Drive Thru on Demand or a third party;
(iii) includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
(iv) includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;
(v) is intended to or does harass or bully other users;
(vi) impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
(vii) uses automated means to artificially promote content;
(viii) involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the Drive Thru on Demand inbox;
(ix) involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Drive Thru on Demand;
(x) links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Drive Thru on Demand;
(xi) interferes with or in any way disrupts the Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or Drive Thru on Demand’s computer systems, network, usage rules, or any of its security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or
(xii) conflicts with the Agreements, as determined by Drive Thru on Demand.
You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your Drive Thru on Demand account.
Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.
8. Infringement and Reporting User Content
Drive Thru on Demand respects the rights of intellectual property owners. If Drive Thru on Demand is notified by a copyright holder that any Content infringes a copyright, Drive Thru on Demand may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to Drive Thru on Demand with a request to restore the removed content.
9. Service Limitations and Modifications
Drive Thru on Demand will make reasonable efforts to keep the Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Drive Thru on Demand reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Service or any function or feature thereof. You understand, agree, and accept that Drive Thru on Demand has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. Drive Thru on Demand and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
10. Customer Support
For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit a ticket to our customer service department using the Customer Service email address on the About Us section of our website. We will use reasonable endeavors to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.
11. Term and Termination
The Agreements will continue to apply to you until terminated by either you or Drive Thru on Demand. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. Drive Thru on Demand may terminate the Agreements or suspend your access to the Service at any time, including in the event of your actual or suspected unauthorized use of the Service and/or Content, or non-compliance with the Agreements. If you or Drive Thru on Demand terminate the Agreements, or if Drive Thru on Demand suspends your access to the Service, you agree that Drive Thru on Demand shall have no liability or responsibility to you and Drive Thru on Demand will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Drive Thru on Demand account, please contact us through the Customer Service contact form which is available on our About Us page. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.
12. Warranty and Disclaimer
WE ENDEAVOR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DRIVE THRU ON DEMAND AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER DRIVE THRU ON DEMAND NOR ANY OWNER OF CONTENT WARRANTS THAT THE SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, DRIVE THRU ON DEMAND MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT DRIVE THRU ON DEMAND IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE DRIVE THRU ON DEMAND SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM DRIVE THRU ON DEMAND SHALL CREATE ANY WARRANTY ON BEHALF OF DRIVE THRU ON DEMAND IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO UNINSTALL ANY DRIVE THRU ON DEMAND SOFTWARE AND TO STOP USING THE SERVICE. WHILE DRIVE THRU ON DEMAND ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO DRIVE THRU ON DEMAND, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DRIVE THRU ON DEMAND, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER DRIVE THRU ON DEMAND HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO DRIVE THRU ON DEMAND DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreements removes or limits Drive Thru on Demand’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
14. Third Party Rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Drive Thru on Demand, and in no event shall the Agreements create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.
If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Drive Thru on Demand only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby 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.
15. Entire Agreement
Other than as stated in this section or as explicitly agreed upon in writing between you and Drive Thru on Demand, the Agreements constitute all the terms and conditions agreed upon between you and Drive Thru on Demand and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.
16. Severability and Waiver
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Drive Thru on Demand or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive Drive Thru on Demand’s or the applicable third party beneficiary’s right to do so.
Drive Thru on Demand may assign the Agreements or any part of them, and Drive Thru on Demand may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.
To the fullest extent permitted by applicable law, you agree to indemnify and hold Drive Thru on Demand harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Service; and (4) your violation of any law or the rights of a third party.
19. Choice of Law and Venue
The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the State of Texas, without regard to choice or conflicts of law principles. Further, you and Drive Thru on Demand agree to the exclusive jurisdiction of the state courts in Brazoria County, Texas or federal courts for the Southern District of Texas.
20. CLASS ACTION WAIVER
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND DRIVE THRU ON DEMAND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Drive Thru on Demand agree, no judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 21 is enforceable, the following mandatory arbitration provisions apply to you:
21.1 Dispute resolution and arbitration
You and Drive Thru on Demand agree that any dispute, claim, or controversy between you and Drive Thru on Demand arising in connection with or relating in any way to these Agreements or to your relationship with Drive Thru on Demand as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual arbitration. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
Notwithstanding clause (21.1) above, you and Drive Thru on Demand both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court, (2) pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, (3) seek injunctive relief in a court of law, or (4) to file suit in a court of law to address intellectual property infringement claims.
21.3 Arbitration rules
Either you or we may start arbitration proceedings. Any arbitration between you and Drive Thru on Demand will be finally settled under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by the Agreements. You and Drive Thru on Demand agree that these Agreements affect interstate commerce, so the U.S. Federal Arbitration Act and federal arbitration law apply and govern the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Drive Thru on Demand can also help put you in touch with the AAA.
Any arbitration hearings will take place at a location to be agreed upon in Houston, Texas, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA’s Consumer Rules with the remainder paid by Drive Thru on Demand. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Drive Thru on Demand for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
If you are not located in, are not based in, do not have offices in, and do not do business in the United States, any arbitration between you and Drive Thru on Demand will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules, as modified by these Developer Terms, and will be administered by the International Court of Arbitration of the ICC.
Any arbitration will be conducted in the English language and unless otherwise required by a mandatory law or any other jurisdiction, the law to be applied in any arbitration shall be the law of the State of Texas, United States, without regard to choice or conflicts of law principles.
21.4 Time for filing
Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
21.5 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Drive Thru on Demand’s address for Notice is: Drive Thru on Demand, Attn: General Counsel, 2005 Cullen Blvd., Pearland, Texas, 77581 USA. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Drive Thru on Demand may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Drive Thru on Demand shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Drive Thru on Demand shall pay you (1) the amount awarded by the arbitrator, if any, (2) the last written settlement amount offered by Drive Thru on Demand in settlement of the dispute prior to the arbitrator’s award; or (3) $1,000.00, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Except as required to enforce the arbitrator’s decision and award, neither you nor Drive Thru on Demand shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
In the event that Drive Thru on Demand makes any future change to this arbitration provision (other than a change to Drive Thru on Demand’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Drive Thru on Demand’s address for Notice, in which case your account with Drive Thru on Demand shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If the class action waiver at Section 20 is found to be unenforceable in arbitration or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21.3 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 19 shall govern any action arising out of or related to the Agreements.
Thank you for reading our Terms.
Drive Thru on Demand