Terms and Conditions
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING DISPUTE RESOLUTION AND ARBITRATION PROVISION INCLUDING CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE BINDING DISPUTE RESOLUTION AND ARBITRATION; CLASS WAIVER SECTION BELOW. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW. PLEASE READ THESE TERMS & CONDITIONS CAREFULLY. BY ACCESSING OR USING THIS APP AND PROMOTIONAL PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS & CONDITIONS DESCRIBED HEREIN AND ALL TERMS & CONDITIONS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS & CONDITIONS, DO NOT PARTICIPATE IN THIS PROGRAM.
These terms and conditions (collectively, the “Terms and Conditions”) shall govern your participation
in and use of the McAlister’s Deli Tea
Pass Program (the “Program”). The Program is operated by
McAlister’s Franchisor SPV LLC, or its parent companies, subsidiaries,
licensees, and affiliated companies (collectively,
“McAlister’s,” “Company,”
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These Terms & Conditions do not alter in any way the terms or conditions of any other agreement you may have with McAlister’s for products, services or otherwise. McAlister’s reserves the right to change, modify and/or eliminate the Program and/or these Terms & Conditions or any policy, FAQ, or guideline pertaining to this Program at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to Tea Pass webpage, and you waive any right you may have to receive specific notice of such changes or modifications. In addition, your sole and exclusive remedy if you do not agree to any such modifications is to withdraw from the Program. Your continued use of the App or the “Tea Pass” (as defined below) or participation in the Program after any modification confirms your acceptance to the modifications.
This Program is void where prohibited or restricted by law. You may enroll in this Program if you: (1) are a legal resident of the United States; (2) are at least 18 years of age at the time you enroll; (3) have an active, valid e-mail address; and (4) are a human being. No corporations, partnerships, limited liability companies, or other legal entities can participate in the Program.
Program Benefits
To participate in the Program, McAlister’s Rewards members may purchase one (1) Tea Pass (the “Tea Pass”) starting at $7.99 plus tax via the App or the Website while logged into your McAlister’s Rewards account. The Tea Pass price may vary by location. If you are not logged into your account, the Tea Pass will not be deposited into your account. Retail price excludes a service fee and associated sales tax charged on each Tea Pass Daily Tea (as defined below) redemption via Website, App, or certain telephone order. See order checkout page for service fee amount. Service fee subject to change in Company’s sole discretion. In-store redemption of a Tea Pass Daily Tea is not subject to the service fee, but sales or other local tax may be imposed as required by law. Delivery orders for Tea Pass Daily Tea subject to normal delivery and service fees. Tea Pass Daily Tea cannot be redeemed on third-party delivery service providers. Subject to any required service fees or taxes, purchase of a Tea Pass entitles you to receive one (1) 32 oz. McAlister’s Famous Sweet Tea, Unsweet Tea, ½ Sweet & ½ Unsweet Tea, ½ Lemonade & ½ Tea, or ½ Lemonade & ½ Unsweet Tea each day (“Tea Pass Daily Tea”) during normal restaurant hours, including free refills while in-store at participating McAlister’s Deli restaurants, during the corresponding 30-day period for which your purchase was made (the “Redemption Period”). The Redemption Period begins on the day that you purchase a Tea Pass and continues for twenty-nine (29) calendar days thereafter. Flavor shots and any other beverages not listed above are not included in the Program and are subject to regular menu prices. Each day during a Redemption Period, you will receive a reward for the Tea Pass Daily Tea via the App. Each Tea Pass Daily Tea reward expires every day at 11:59 PM. Any unused Tea Pass Daily Tea is considered forfeited and will not be refunded or carried over to the next day. Your enrollment in the Program provides you the opportunity to use the Tea Pass benefits and your non-use of the Tea Pass will not obligate McAlister’s to provide you with any refund, in whole or part, of the Tea Pass purchase price. Not valid on catering orders. Tea Pass Daily Tea rewards cannot be combined with any other offer or discount. No cash value. We reserve the right at any time and in our sole discretion to verify your eligibility and compliance with these Terms and Conditions. There is a limit of one Tea Pass per person per Redemption Period and your Tea Pass cannot be shared. McAlister’s reserves the right to update, change, modify or terminate the Program and/or any Program benefits at any time, in its sole discretion without any notice to you. If you disagree with any modifications of the Program, your sole recourse is to cease future participation in the Program.
Cancellation
If you cancel your McAlister’s Rewards account prior to the end of a Redemption Period, you will no longer receive a Tea Pass Daily Tea or otherwise be able to participate in the Program. In such event, you will not be entitled to a prorated refund of any unused portion of the Tea Pass purchase price.
No Warranties
THE APP, CONTENT, AND THE PROGRAM ARE PROVIDED ON AN “AS IS”, AND “AS AVAILABLE” BASIS, AND MCALISTER’S HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MCALISTER’S DOES NOT GUARANTEE THAT THE APP OR CONTENT WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
Limitation of Liability
IN NO EVENT SHALL MCALISTER’S BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES (DIRECT OR INDIRECT) WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE APP (INCLUDING ITS MODIFICATION OR TERMINATION), THE CONTENT, THE PROGRAM, OR THESE TERMS AND CONDITIONS, WHETHER OR NOT MCALISTER’S MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
Binding dispute resolution and arbitration; class action waiver
Please Read This Provision Carefully. It Affects Your Legal Rights, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
This Binding Dispute Resolution and Arbitration; Class Action Waiver Provision (the “Provision”) facilitates the prompt and efficient resolution of any “dispute,” which includes any claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and McAlister’s that may arise out of or any way relate to your access of the App, your use of and participation in the Program, including the validity, enforceability or scope of this Provision (with the exception of the Class Action Waiver provision below). Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as McAlister’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against McAlister’s in the same proceeding.
This Provision provides that all disputes between you and McAlister’s shall be resolved by binding arbitration because acceptance of these Terms and Conditions constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. McAlister’s prefers this because McAlister’s believes arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and Conditions and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). ALL PARTIES HERETO AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
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Pre-arbitration claim resolution
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Exclusions from arbitration/right to opt out
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Arbitration procedures
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Class action waiver
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Jury waiver
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Severability
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Continuation
For all Disputes, whether pursued in court or arbitration, you must first give McAlister’s an opportunity to resolve the Dispute which is first done by visiting www.mcalistersdeli.com/contact and filling out the form: (1) Your name, (2) Your address, (3) A written description of your claim, and (4) A description of the specific relief you seek. If McAlister’s does not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Notwithstanding the above, you or McAlister’s may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS AND CONDITIONS (the “Opt-Out Deadline”). You may opt-out of this Provision by mailing McAlister’s at McAlister’s Franchisor SPV LLC, Attn: Legal Department, 5620 Glenridge Drive, Atlanta, GA 30342: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with McAlister’s through arbitration. Either way, McAlister’s will not take any decision you make personally. In fact, McAlister’s promises that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with McAlister’s. But, McAlister’s does have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or McAlister’s may initiate arbitration proceedings with either the American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com. AAA or JAMS will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes that are in effect at the time the arbitration is initiated will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules that are in effect at the time the arbitration is initiated will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection that are in effect at the time the arbitration is initiated shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases that are in effect at the time the arbitration is initiated will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because the Program and these Terms and Conditions concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law and may be entered in any court having jurisdiction over the parties for purposes of enforcement. You and McAlister’s understand that, absent this mandatory arbitration provision, you and McAlister’s would have the right to sue in court and have a jury trial. You and McAlister’s further understand that, in some instances, the costs of arbitration could exceed the costs of litigation in court and the right of discovery may be more limited in arbitration than in court.
Confidentiality of Arbitration Proceedings – Arbitration proceedings conducted pursuant to this Section 3 shall be strictly confidential. The fact that an arbitration exists or is proceeding, the nature of the Dispute, all documents exchanged in connection with the arbitration, all testimony (including transcripts of testimony, if any) that is given in the arbitration proceeding, and any arbitration award shall remain confidential. The only exceptions to this confidentiality provision are disclosures reasonably necessary to confirm or vacate an arbitration award, a judicial challenge to an arbitration award or its enforcement, or disclosure that is required by operation of law or court order; provided, however, that this Paragraph shall not prevent the disclosure of such information (1) as may be required to your legal and financial advisors and independent accountants; (2) as may be required to any of McAlister’s (a) legal, financial and other professional advisors, regulators, rating agencies, independent accountants, analysts, agents, and/or directors, (b) shareholders and/or affiliates and their respective officers, directors and legal, financial and other professional advisors, and/or (c) existing or potential insurers or reinsurers, existing or potential investors, existing or potential lenders, or existing or potential purchasers; and/or (3) as otherwise required to comply with any applicable law or regulation.
Location of Arbitration – You or McAlister’s may initiate arbitration in either Atlanta, Georgia, or the Unites States county in which you reside. In the event that you select the county of your United States residence, McAlister’s may transfer the arbitration to Atlanta, Georgia in the event it agrees to pay any additional fees or costs you incur as a result of the change in the arbitration location as determined by the arbitrator.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, McAlister’s will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses, unless McAlister’s is otherwise specifically required to pay such fees under applicable law. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with McAlister’s as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and McAlister’s specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other participant in the Program can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS. You understand and agree that by accepting this Provision in these Terms and Conditions, you and McAlister’s are each waiving the right to a jury trial or a trial before a judge in a public court, to the fullest extent allowed by law. In the absence of this Provision, you and McAlister’s might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court and you and McAlister’s each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury as set forth above.
This Provision shall survive the termination of your account with McAlister’s and your discontinued participation in the Program. Notwithstanding any provision in these Terms and Conditions to the contrary, McAlister’s agrees that if McAlister’s makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require McAlister’s to adhere to the present language in this Provision if a dispute between the parties hereto arises.
The parties agree that the laws of the State of Georgia, United States of America, governs these terms and conditions and any dispute between you and mcalister’s, irrespective of where the PROGRAM ENROLLMENT was completed or where the member resides or the choice of law principles of Georgia or any other jurisdiction.
Other Information
All or any of McAlister’s rights and obligations hereunder may be assigned to a subsequent owner or operator of the App in a merger, acquisition, or sale of all or substantially all of McAlister’s assets. If, for any reason, a court of competent jurisdiction finally determines any provision of these Terms and Conditions or any portion thereof to be unenforceable, such provision will be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions will continue in full force and effect. McAlister’s failure to act with respect to a breach by you or others does not waive McAlister’s right to act with respect to that breach or subsequent or similar breaches.