SMALL CHEVAL  TERMS OF USE

Date of Last Revision: June 13, 2024

These Terms of Use (“TOU”) govern how Management of Small Cheval LLC  and its members, managers, and our affiliates, including our affiliated restaurants and brands (collectively, “Hogsalt”, “we”, “us”, “our”) provide the websites and mobile applications that link to these TOU (collectively referred to herein as the “Website(s)” and “App(s),” respectively) and our content, features, products, and services, including our Rewards Program (collectively, together with the Services, the “Services”). The Rewards Program is subject to these TOU and the Program Terms below. These terms incorporate our Privacy Policy, which describes how we handle your information. Our Services may be subject to other terms and policies as notified to you.

PLEASE READ THESE TOU CAREFULLY, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, AND CONTAIN A BINDING ARBITRATION CLAUSE THAT WILL GOVERN ANY DISPUTES YOU HAVE WITH US REGARDING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SERVICES.

We reserve the right, at our sole discretion, to change or modify portions of these TOU at any time. If we do this, depending on the nature of the change, we will post the changes on this page and indicate the date of the last revision at the top of this page. We will provide other notice of changes to these TOU as required by applicable law. Except where otherwise prohibited by applicable law, your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new TOU.

  1. Access and Use of the Services

 

  1. Use Description

The Services are provided solely for your personal and non-commercial use.  We grant you a limited, non-exclusive, non-transferable, license to access and use the Services for these purposes. Except for the foregoing limited license, no right, title, or interest shall be transferred to you. Hogsalt may revoke your license at any time in its sole discretion. 

  1. Modifications to the Services

Hogsalt reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Hogsalt also reserves the right to refuse to provide the Services to anyone for any lawful reason at any time. You agree that Hogsalt will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or refusal to provide the Services. 

  1. Conditions of Use

    1. Hogsalt’s Rights

You agree to use the Services solely in accordance with these TOU and applicable law. If you violate any provisions or restrictions of these TOU, we reserve the right, in our sole discretion and without notice to you, to block or limit your access to and use of the Services, including without limitation by terminating, deleting, and/or deactivating any account you may have with us. We are not liable to you or any third party for any termination of any account or access to the Services.

 

  1. Content

You are solely responsible for all video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“Content”) that you upload, post, publish or display (hereinafter, “Upload”) or email or otherwise use via the Services. You acknowledge that Hogsalt has the right (but not the obligation) in its sole discretion to pre-screen, refuse, permanently delete, undelete, modify and/or move any Content. Without limiting the foregoing, Hogsalt reserves the right to investigate and take appropriate legal action against anyone who, in Hogsalt's sole discretion, violates this provision, including without limitation, removing the offending Content from the Services, suspending or terminating the account of such violators and reporting you to law enforcement authorities. 

  1. Accounts 

To use some or all of our Services, you may need to create an account by providing information like a username, email, or password. You are solely responsible for maintaining the security and confidentiality of your account and you may not share your login information or transfer your account to another individual without our written permission. You are solely responsible and liable for all activity that takes place in connection with your account, including purchases, whether or not authorized by you. If you think your account has been compromised, you must notify us immediately. Hogsalt will not be liable to you for any loss or damage that occurs in connection with any unauthorized activity on your account. 

 

In creating an account, you represent that all information you provide is true, accurate, and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates a third party’s rights. 

  1. Limitations on Use of the Services

You must be at least 18 years old (or the age of majority in your jurisdiction) to use the Services.

You agree not to do, attempt to do, enable, or encourage anyone else to do, anything illegal or (as determined by us in our sole discretion) objectionable or inappropriate in connection with the Services, including but not limited to the following: 

  • use the Services in violation of, or in connection with violating, any local, state, national, or international law or regulation having the force of law, or any legal or contractual rights of us or any third party, or any obligations you may have to any party (including, without limitation, intellectual property rights, privacy or publicity rights, and confidentiality obligations);

  • reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, or use of or access thereto;

  • interfere with, disrupt, or create undue burden on the Services or the networks or services connected thereto by any means, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

  • engage in or use any data mining, robots, spiders, scraping or similar data gathering or extraction methods to access or collect data from the Services;

  • solicit personal information from other users of the Services or harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

  • circumvent any of the Services’ security measures, reverse engineer any portion of Services, obtain any source code, or create back doors or any form of unauthorized access to the Services; 

  • impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; 

  • advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

  • obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services; 

  • email or otherwise Upload any Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to Upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Hogsalt, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Hogsalt or its users to any harm or liability of any type; or

  • use the Services in any way not specifically permitted by these TOU.

 

  1. Intellectual Property Rights

 

  1. Content, Software and Trademarks

You acknowledge and agree that the Services may contain Content or features (“Hogsalt Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Hogsalt, you agree not to modify, copy, frame, scrape, reverse-engineer, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Hogsalt Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally Upload to the Services. If you are blocked by Hogsalt from accessing the Services (including blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Hogsalt Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Hogsalt.

The Hogsalt name and logos, and the names and logos of our brands, are trademarks and service marks of Hogsalt (collectively the “Hogsalt Trademarks”). Other product and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Hogsalt. Nothing in this TOU or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Hogsalt Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Hogsalt Trademarks will inure to our exclusive benefit.

You acknowledge and agree that Hogsalt may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these TOU; (iii) respond to claims that any Content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Hogsalt, its users and the public. You understand that the technical processing and transmission of the Services, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

  1. Third Party Material

Under no circumstances will Hogsalt be liable in any way for any Content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content. You acknowledge that Hogsalt does not pre-screen Content, but that Hogsalt and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, Hogsalt and its designees will have the right to remove any Content that violates these TOU or is deemed by Hogsalt, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

  1. User Content Transmitted Through the Service

With respect to the Content or other materials you Upload through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that you have all required rights to post or transmit such User Content or other materials without violation of any third-party rights. By Uploading any User Content you hereby grant and will grant Hogsalt, its affiliated companies and partners a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, Upload, adapt, perform, publish, distribute (through multiple tiers of distribution and partnerships), store, modify and otherwise use and fully exploit your User Content in any and all media, form, medium, technology or distribution methods now known or later developed and for any and all purposes (commercial or otherwise).

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information relevant to the Service (“Submissions”), provided by you to Hogsalt, its affiliated companies or partners are non-confidential and Hogsalt, its affiliated companies and partners will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that all User Content and Submissions submitted under your account or in your name, whether publicly posted or privately transmitted, is your sole responsibility. This means that you, not Hogsalt, are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Services.

  1. Third Party Services

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet, such as third-party reservation or food delivery platforms. Hogsalt has no control over such sites and resources and Hogsalt is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Hogsalt will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Hogsalt is not liable for any loss or claim that you may have against any such third party. Third-party services are governed by the terms and policies of the third parties providing the services. Before using any third-party services, you should review the relevant terms and policies.

  1. Accuracy

We do not warrant that information made available on or through the Services is accurate, complete, reliable, error-free or current. Occasionally the Services may contain typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information if any information in connection with the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by law. 

 

We have made every effort to display the images of our products that appear on the Services as accurately as possible. We cannot guarantee that your computer monitor’s display of any color will be accurate.

 

  1. Purchases and Reservations

This Section on Purchases supplements the rest of the TOU and governs orders and other purchases made through the Services, such as food orders and purchases of gift cards or other products. These TOU do not cover any purchases made from, or other interactions with, third party services, such as third-party reservation or food delivery platforms.

 

  1. Order Acceptance and Billing

 

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, household, or order. These restrictions may include orders placed by or under the same customer account, the same credit card, or orders that use the same billing and/or shipping address. If we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail, phone number, or physical address provided when you placed the order. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. 

 

You agree to provide current, complete and accurate information as requested for all purchases made on our Services. If you have created an account, you agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s), including any taxes, surcharges, or similar fees notified to you at the time of purchase.

 

  1. Pricing; Refunds and Exchanges

 

Prices are subject to change without notice. We cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Services. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from us. We may, in our discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products on the Services may differ from pricing for product sold in our physical locations.

 

All purchases are final, and we do not accept refunds or exchanges unless otherwise stated.



  1. Indemnity and Release

To the fullest extent permitted by law, you agree to release, indemnify and hold Hogsalt and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses (including reasonable attorneys’ fees and court costs), rights, claims, actions of any kind (including any inquiries or investigations), and injury arising out of or relating to your use of the Services, any Content, your connection to the Services, your violation of these TOU or your violation of any rights of another. Hogsalt reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Hogsalt in the defense of such matter.

  1. Communications

 

  1. In General

We may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number that you provide us, to notify you regarding your account; troubleshoot problems with your account; resolve a dispute; collect a debt; or as otherwise necessary to service your account or enforce these TOU, our policies, applicable law, or any other agreement we may have with you.

You agree to receive electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and will have full legal effect.  You also agree that any transaction or agreement undertaken on or through the Services, including your agreement to these TOU, is an electronic transaction or agreement.

 

We may route phone and text communications through a third-party service provider, and we or the service provider may record telephone conversations you have with us or its agents for quality control and training purposes, or for our own protection or legal compliance purposes.

 

  1. SMS Terms

Signing Up for SMS Text Messages. You may sign up for SMS text messages in connection with the Services, including marketing text messages. By Opting In to text messages, you authorize us or our provider to use autodialer or non-autodialer technology to send text messages to the mobile phone number associated with your Opt-In. You authorize us to include marketing content in any such messages. You do not have to Opt In or agree to Opt In as a condition of any purchase. (For purposes of these SMS Terms, “Opting In,” “Opt In” and “Opt-In” refer to requesting, joining, agreeing to, enrolling in, signing up for, acknowledging, or otherwise consenting to receive any text messages.)

To opt out, you must text STOP in response to any SMS message sent from or on behalf of us. You 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 our list, is not a reasonable means of opting out.

By Opting In to text messages:

  • You are signing your Opt-In to the text messages.

  • You accept these SMS Terms. Our text message-related activities are part of the Services as defined above. 

  • You 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 In.

  • You consent to the use of an electronic record to document your Opt-In. To withdraw that consent, request a free paper or email copy of the Opt-In, or to update our records with your contact information, please contact us as described at the end of our Privacy Policy. To view and retain an electronic copy of these SMS Terms or the rest of your Opt-In, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you’ll also need an email account you can access from the device, along with a browser or other software that can display the emails. These SMS Terms still will apply if you withdraw the consent mentioned above or opt out of the text messages.

After Opting In, in addition to the main messages the service offers, you may receive one or more welcome messages or administrative messages, such as (in some cases) a request to confirm your Opt-In.

Message and data rates may apply to messages that we send you or that you send us. You may receive multiple, recurring messages. We may terminate our text message programs or your participation in them at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS Terms still will apply. You may receive one or more confirmation messages when you opt out or when your participation in the program otherwise ends. We and mobile carriers are not liable for delayed or undelivered messages. 

For customer service regarding our SMS programs, contact us as provided at the end of these Terms.

 

Discontinuing or Transferring Your Phone Number. If at any time you intend to stop using the mobile telephone number that has been used to subscribe to text messaging, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the user opt out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your account or these Terms.

 

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

 

  1. Disclaimer of Warranties

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES, AND THE INFORMATION AND CONTENT PROVIDED ON OUR SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, HOGSALT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  

HOGSALT MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS OR CONTENT THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED OR PURCHASED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.

  1. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOGSALT, ITS EMPLOYEES, AGENTS, CONTRACTORS, AND SUPPLIERS ("HOGSALT ENTITIES") WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE HOGSALT ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL THE HOGSALT ENTITIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE HOGSALT ENTITIES IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.  IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TOU, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

  1. Binding Arbitration; Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.  

As detailed herein, the TOU mandate that all disputes between you and Hogsalt be resolved first through an informal dispute resolution process. In the event informal resolution fails, the TOU further mandate that all disputes (except those identified in Section 12.3) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, you should read the entirety of Section 12 carefully as it may significantly affect your legal rights.

  1. Informal Dispute Resolution Procedure

For any and all disputes between you and Hogsalt, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against you in arbitration.

To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against Hogsalt that you initiate, you agree to send to Hogsalt (i) a written description of the dispute and (ii) the email address(es) associated with your account through the following email address: legal@hogsalt.com. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that Hogsalt initiates, we will send our written description of the dispute to the email address associated with your use of the Services.

If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, you and Hogsalt agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.

A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

 

  1. Binding Arbitration

After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process (Section 12.1), and only if those efforts fail, then either party may initiate arbitration as set forth in this Section.

If you determine to initiate arbitration, a copy of the arbitration demand must be emailed to legal@hogsalt.com. If Hogsalt is initiating arbitration, it will serve a copy of the demand to the email address associated with your use of the Hogsalt Services.

(a) Mutual Arbitration Agreement

Except as set forth in Section 12.3 below, you and Hogsalt agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these TOU—including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section 12.2 (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section 12.2.

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in Sections 12.4 and 12.5.

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and Hogsalt expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply.

Except as set forth in Section 12.2(c) below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

(b) WAIVER OF RIGHTS INCLUDING JURY TRIAL. THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND HOGSALT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

(c) CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER. YOU AND HOGSALT ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION 12.2(c) AND SECTION 12.2(e)(vi) BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF HOGSALT PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this Section, or that the provisions in this Section 12.2 are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent you or HOGSALT from participating in a class-wide settlement of claims.

(d) Arbitration Location. If you are a resident of the United States, arbitration will take place in the county where you reside. For residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in the County of Cook, State of Illinois, United States of America, unless you and Hogsalt otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.

For any arbitration conducted in the County of Cook, State of Illinois, United States of America, You and Hogsalt agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available

(e) The Arbitration Rules

 

(i) The Provider.

 

The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.

 

Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.

You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section 12 while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

 

(ii) Arbitration Demand Must Contain Sufficient Information.

 

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these TOU. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these TOU.

 

(iii) Arbitration Conducted on Papers in Some Circumstances.

 

If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents that you and Hogsalt submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

 

(iv) Dispositive Motions.

 

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.

 

(v) Batching.

 

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with Section 12.2(e)(i) if NAM is unavailable) against Hogsalt within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with 12.2(e)(i) if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Hogsalt and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. If your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

 

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.

You agree to cooperate in good faith with Hogsalt and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, you and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.

 

(vi) No Class or Consolidated Arbitration Absent Written Consent.

 

Unless Hogsalt otherwise consents in writing, which it may do on a case-by-case basis, HOGSALT does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section 12.2(c) and this Section 12.2(e)(vi).

 

(vii) Arbitration Award.

 

The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with Section 12.2(c) above, and also must be consistent with the terms of the “Limitation of Liability” section of these TOU as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

 

  1. Exceptions to Arbitration.

 

Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in Section 12.2:

 

(a) IP Disputes. Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in the City and County of Chicago, Illinois. 

 

(b) Small Claims Court and Statutes of Limitation. Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.

 

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

 

(c) Jurisdiction/Service of Process. For any dispute not subject to arbitration under this Section 12, you and Hogsalt agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New York, New York. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

 

  1. 30-Day Right to Opt Out.

 

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out to the following address: legal@hogsalt.com. The notice must be sent within 30 days of June 13, 2024 or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of Section 12.2. If you opt-out of the arbitration provisions, Hogsalt also will not be bound by them.

 

If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If Hogsalt changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice as described in Section 12.4. 

Hogsalt will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and Hogsalt. 

  1. Changes to this Section.

 

Hogsalt will provide 30 days’ notice of the date of any material changes to this Section 12. Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Hogsalt does not have actual notice are subject to the revised clause.

  1. General

These TOU constitute the entire agreement between you and Hogsalt and govern your use of the Services, superseding any prior agreements between you and Hogsalt with respect to the Services. These TOU will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth in Section 12 above, you and Hogsalt agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York. The failure of Hogsalt to exercise or enforce any right or provision of these TOU will not constitute a waiver of such right or provision. If any provision of these TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these TOU remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this TOU and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this TOU to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this TOU without the prior written consent of Hogsalt, but Hogsalt may assign or transfer this TOU, in whole or in part, without restriction. The section titles in these TOU are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Under no circumstances shall Hogsalt be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control. The Services may also provide notices to you of changes to these TOU or other matters by displaying notices or links to notices generally on the Services.

  1. Contact Us

Please contact us at dataprotection@hogsalt.com with any questions regarding this TOU.