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Effective Date: September 3, 2024
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION” AND “CLASS ACTION WAIVER” SECTIONS BELOW. PLEASE READ CAREFULLY.
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE ONLINE SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
These Terms and Conditions of Use (these “Terms and Conditions”), including the SMS Terms below, apply to your access to, and use of, any website, mobile application, email newsletter, or online service or program, including self-service devices at our restaurant locations (like kiosks) (collectively, the “Online Services”) of Shake Shack Enterprises, LLC and its affiliates (collectively, “Shake Shack”, “we” and “us”) where these Terms and Conditions are posted or linked.
These Terms and Conditions are a legal and binding agreement between you and Shake Shack. These Terms and Conditions govern your use of the Online Services, which include the programs, content, information, services, and features made available through the Online Services. You must be 13 years or older to use the Online Services.
Your use of the Online Services is at your risk. If you are dissatisfied with the Online Services in any way, its programs, contents, or features, or these Terms and Conditions, your sole and exclusive remedy is to discontinue accessing and using the Online Services.
Modifications to Terms and Conditions
Except for the “Mandatory Arbitration” section below, providing for binding arbitration, and the “Class Action Waiver” section below, which waives class action rights, Shake Shack reserves the right at any time to update, change, modify, or revise these Terms and Conditions. Any changes will become effective upon posting the changes, modifications or revisions to the Online Services, along with the date on which it was most recently updated as indicated by the “Effective Date” section at the top of these Terms and Conditions. Your continued access to or use of the Online Services after any such changes indicates your acceptance of the Terms and Conditions as modified. It is your responsibility to review the Terms and Conditions regularly for updates.
Use of the Online Services
The Online Services and all content, information, and other materials featured, displayed, contained, and available on the Online Services, including, but not limited to, all text, images, graphics, designs, illustrations, photographs, pictures, audio, software, and video clips, the “look and feel”, pages, screens, content arrangement, and computer programs (collectively, “Materials”) are owned by or licensed to Shake Shack and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights and unfair competition laws under the United States and foreign laws. Subject to your compliance with these Terms and Conditions, Shake Shack grants you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download the Online Services for noncommercial purposes only. You may view, display, copy, download, and print Materials solely for your own personal, noncommercial use. All copyright, trademark, and other proprietary notices contained on the Materials must be retained on all copies thereof. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, the Online Services or its Materials. Except as expressly provided herein, Shake Shack does not grant any express or implied right to you under any patents, trademarks, copyrights, or trade secret information.
You agree to abide by all additional terms, conditions, and restrictions included within the Online Services, Materials, and/or the programs, features, and services.
Shake Shack may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to any of the Online Services, or any portion thereof; (2) change, revise, or modify the Online Services, Materials, or any portion thereof; (3) interrupt the operation of the Online Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or for any other purposes; (4) impose limits on certain programs, features, and services, or restrict your access to the Online Services, in whole or in part; and/or (5) terminate the authorization, rights, and license given above, upon which you shall immediately destroy all Materials. The Online Services are available in many parts of the United States and throughout the World. However, not all products and services described in these Terms and Conditions may be available outside the United States of America.
User Conduct
You agree to use the Online Services, Materials, and programs, features and services in accordance with these Terms and Conditions and all applicable laws and regulations. You agree not to:
- modify, adapt, translate, decipher, decompile, disassemble, decrypt, or reverse engineer any portion of the Online Services or Materials;
- use the Online Services or any Materials, features, or services for any unlawful, fraudulent, or malicious purposes, or to solicit any such activity;
- attempt to gain unauthorized access to any accounts, features, systems, or networks through hacking, password mining, or any other means;
- impersonate any person or entity, or misrepresent your credentials or any information you provide;
- use the Online Services or any feature in any way that could disrupt, damage, disable, overburden, or impair it or its systems, servers, or networks;
- frame or mirror any portion or feature of the Online Services;
- use the Online Services or any feature for advertisements, chain letters, spamming, junk mail, solicitations, or any other commercial purposes;
- use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any similar or equivalent manual process, to: (1) access, acquire, copy, or monitor any portion of the Online Services or Materials; (2) reproduce or circumvent the navigational structure or presentation of the Online Services or Materials; or (3) obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Online Services;
- harvest or otherwise collect or store any information (including personal information) about other users, including e-mail addresses, without the express consent of such users;
- use any device, software, or routine to interfere or attempt to interfere with the proper working of the Online Services or with any other person’s use or enjoyment of the Online Services or otherwise impose an unreasonable load on our network or infrastructure;
- use the Online Services to send commercial electronic messages or install a computer program on another person’s computer system;
- transmit any viruses, worms, defects, Trojan horses, time bombs, cancel-bots, corrupted files, or other items of a destructive nature;
- circumvent or attempt to circumvent any security or authentication measures implemented by or on behalf of Shake Shack;
- forge headers or otherwise manipulate identifiers;
- post, transmit, submit, or include any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable content, material, or information of any kind, or any content, material, or information that may give rise to criminal or civil liability;
- submit or post any false or misleading information;
- violate, infringe, or misappropriate the intellectual property, publicity, privacy, or other proprietary rights of Shake Shack, its Affiliates, or any other person or entity; and/or
- engage in any other conduct that restricts any person from using the Online Services, or that, in our sole judgment, exposes us, users, or any other third party to any liability, damages, or detriment of any type.
Shake Shack reserves the right to prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to the Online Services, Materials, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions and/or applicable law.
Submissions
Except for any personally identifiable information Shake Shack may collect from you under the guidelines established in our Privacy Policy, any materials, remarks, suggestions, ideas, photos, stories and/or other information you communicate or submit to us through the Online Services (including, without limitation, “Share Your Shake Shack Story”), via phone, or otherwise (collectively, “Submissions”) will be considered non-confidential and non-proprietary. By providing a Submission to us, you expressly grant us an unrestricted, irrevocable, perpetual, transferable (i.e., fully assignable and sub-licensable), worldwide, royalty-free license to disclose, copy, reproduce, display, publicly perform, transmit, distribute, translate, reformat, incorporate, and otherwise use your Submission along with your name, photograph, voice, likeness and other information, content, or materials embodied therein, in whole or in part, and create derivative works therefrom, in any media now known or hereafter developed, and for any and all commercial or non-commercial purposes without compensation to you or anyone else. You also permit any user to access, display, view, store, and reproduce, for personal use only, your Submission as posted by us.
Shake Shack may, but shall not be obligated to, in our sole discretion, post any Submission on the Online Services and identify you as the submitting party. We may, without notice to you, refuse or edit Submissions for any reason or no reason, including those Submissions that violate these Terms and Conditions, are irrelevant or inappropriate, or represent us in a negative way or in any manner not consistent with our brand and/or reputation, as determined by us in our sole discretion.
You agree that any statements that you make about us or any of our products, services, or programs in any Submission that you make accurately reflect your personal beliefs and experiences with us and our products and services, and that any opinions submitted are true to the best of your knowledge.
You are fully responsible for your Submissions. You agree that your Submissions comply in all respects with these Terms and Conditions and shall not be made on behalf of any person or entity without their prior written consent. You may not include any content (e.g., text, photos, images, quotes, logos, etc.) that is the property of another (e.g., protected by copyright, trademark, or other intellectual property rights), unless you have express, written permission to do so.
Login and Registration
Certain programs, features, or services offered on or through the Online Services may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify Shake Shack immediately of any unauthorized use of your login, or any other breach of security. You may be held liable for losses incurred by Shake Shack or any other Online Service user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.
You may not use anyone else’s login at any time without their express written permission. Shake Shack shall not be liable for any loss or damage arising from your failure to comply with these obligations.
Ordering
To place an order through the Online Services, you must provide valid payment card and billing information. By purchasing items through the Online Services, you represent and warrant to Shake Shack that you are capable of entering into a contract under the applicable law. The Online Services use third party providers (each, a “Payment Processor”) to store your payment card information and to process your payments. You understand and agree that, when you register a payment card, we or our third party providers may verify that the payment card you registered is valid. If applicable, you may be provided a notice when entering your payment information directing you to such Payment Processor’s terms of use and privacy policy. All payments are governed by the Payment Processor’s terms of use and privacy policy.
You understand and agree that you are charged at the time you place your order. You further understand and agree that the transaction for the purchase of products or services is final and complete at the time you are charged. You agree to pay all charges incurred by you, on your behalf, or by your account through the Online Services. You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete; (ii) charges incurred by you will be honored by your credit/debit card company or bank; (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes; and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
Each restaurant location may independently determine its own prices and may independently apply any additional taxes and fees as required by law. Certain offers and pricing may not be available for all orders at all locations. In the event you discover an error in the price of a product charged to you, please contact [email protected].
If a credit card account is being used for a transaction, Shake Shack may obtain preapproval for an amount up to the amount of the payment. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
If we do not receive payment via your payment method, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. If the payment method you provide is initially declined for any reason, we reserve the right to charge the payment method (credit card or other accepted mechanism) in installments, at the non-promotional/non-discounted rate that is in place at the time, for the full duration of the subscription that you have selected. You bear sole responsibility for all overdraft fees or other penalties that may be assessed by your payment provider. You are responsible for any use of your credit card or other payment instrument.
All products are subject to availability at the restaurant location where you collect your order. Some restaurant locations do not sell all products. Images of products and packaging on the Online Services are examples only and may not be identical to the product or packaging you receive from a restaurant location. Differences may be due your device’s display of colors or factors such as the ingredients used, the supplier, the region of the country, and the season of the year.
We reserve the right at any time to discontinue online ordering, or to change the location of restaurants or markets offering or participating in such offerings at any time.
You may receive promotions through the Online Services. The promotion may only be available through only certain Online Services and for the product shown and subject to availability, in participating restaurant locations only, and until the expiration date. Time of day limitations may apply. Unless otherwise stated, each promotion expires on redemption and only one promotion can be used per restaurant location visit or order. Promotions are not transferable and there is no cash alternative. In addition, there may be specific terms that apply to the promotion, which are stated in connection with the promotion. Not all promotions may be combined with orders.
Mobile Apps
In order to use the Online Services made available through the mobile application (the “Mobile App”), you must have a compatible mobile device; Shake Shack does not warrant that the Mobile App will be compatible with your mobile device.
If you access the Mobile App using an Apple iOS or Android powered device, Apple Inc. or Google, Inc., and each of their subsidiaries shall be a third-party beneficiary to this contract, and you agree that these third-party beneficiaries have the right to enforce these Terms and Conditions against you. However, these third-party beneficiaries are not a party to these Terms and Conditions and are not responsible for the provision or support of the Mobile App. You agree that your access to the Mobile App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
The Mobile App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances updates and/or new versions may reduce or remove features and functionality in prior versions of the Mobile App.
Links To Third Party Sites and Social Media Pages
The Online Services may contain links to other third-party websites, including of the franchised operators of the “Shake Shack” business (“Operators”), and social media platforms, such as Facebook, Twitter, Snap Chat or Instagram (all links to third-party websites and social medial platforms are collectively referred to herein as “Linked Sites”). Linked Sites are provided only for your convenience. If you decide to visit any Linked Site, you do so at your own risk. Shake Shack shall have no responsibility or liability for any Linked Sites, or the content, policies, or actions thereof. If you choose to purchase any product or service from a Linked Site (including, without limitation, from a Linked Site of an Operator), your relationship is with that third party. You agree that Shake Shack is not responsible for the quality of third-party products or services, or fulfilling any of the terms of your agreement with the seller, including, but not limited to, the delivery of products and services and warranty obligations related to products and services. Links do not imply that we sponsor, endorse, are affiliated with or associated with, or are legally authorized to use any trademark, trade name, service mark, design, logo, symbol, or other copyrighted materials displayed on or accessible through such Linked Site.
Privacy
Shake Shack’s Privacy Policy applies to use of the Online Services, and its terms are made a part of these Terms and Conditions by this reference. By accessing and using the Online Services you agree to be bound by our Privacy Policy.
Trademark Information and Ownership of Intellectual Property
Shake Shack® is a registered trademark and service mark of Shake Shack in the United States and other countries. The Online Services, Materials, and the trademarks, logos, service marks, and all other source identifying indicia displayed on the Online Services (collectively, the “Intellectual Property”) are owned by or licensed to Shake Shack with all rights reserved unless otherwise noted. The absence of a trademark notice or legend indicating the registration or ownership by Shake Shack anywhere in the text of the Online Services does not constitute a waiver of Shake Shack’s trademark or other intellectual property rights concerning that trademark or service mark used or referenced on the Online Services.
Shake Shack does not permit third parties to use the Intellectual Property in any manner, including advertising, as an endorsement for any product or service, in association with contests or promotions, or for any other purpose, commercial or otherwise, without our prior express written permission.
Nothing contained on the Online Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Intellectual Property without our prior express written permission. You are strictly prohibited from using any of the Intellectual Property except as expressly provided in these Terms and Conditions. You are also advised that Shake Shack and/or its licensee(s) will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution.
Electronic Communications
When you visit the Online Services or send e-mails, text messages (defined below), or other digital communications to us, you are communicating with us electronically. You consent to receive communications from us electronically. We may communicate with you by e-mail, text message or by posting notices on the Online Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions.
SMS Terms
We may offer you opportunities to receive marketing, customer service, and other account-related correspondence (including regarding exclusive offers, loyalty program information, and other promotions from us), job application information, and other communications from us via text messages or similar technology (including via automatic telephone dialing equipment). By utilizing or registering for our Online Services, you agree to this SMS Terms section of the Terms and Conditions (the “SMS Terms”) and consent to receive communications from us, which may include calls and text messages to the cellular telephone number you provide to us. Depending on your relationship with us and consents received, we or our service providers may send short message service (SMS), multimedia message service (MMS), or other similar text messages (collectively, “text messages”) to: (1) provide you with information you requested from us; (2) update you regarding your orders and other transactions and communications with us (including regarding job applications); (3) respond to your customer service requests and other inquiries regarding your use of our products; and/or (4) send you marketing or promotional text messages. Any text messages we send to you are subject to the SMS Terms set forth in this section.
Consent to Receipt of Shake Shack Text Messages. You may provide us with consent to send you text messages through our website or mobile application (e.g. by providing us with your phone number and signing up for text messages) or through communications or transactions with us (e.g. by initiating or agreeing to receive text message communications with customer service). By providing your consent, you agree to these SMS Terms, our Terms and Conditions, and our Privacy Policy.
In addition to the above, when you submit an order using the Online Services, we may send you an email, push or text message confirming that you placed an order and the status of your order. By submitting an order, you affirmatively agree to receive such text message, push or email communications at the contact information you provide or on your mobile device containing our mobile application, as the case may be. You must be at least 18 years of age or older to place an order through the Online Services, or otherwise under the supervision of an adult or guardian.
E-SIGN Disclosure. By agreeing to these SMS Terms, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing us with “Revoke SMS Electronic Consent” in the subject line at [email protected], provided that if you agreed to these SMS Terms in connection with your current employment with Shake Shack, or solely in connection with a job application to Shake Shack submitted through Workday Recruiting (our official talent acquisition platform), you may email [email protected].
To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email us at with your contact information and the physical address for delivery to [email protected] or [email protected], as the case may be.
By consenting to receive Shake Shack text messages, you agree that Shake Shack or its service providers may use any automated or non-automated technology to send you transactional and/or marketing text messages. You are not required to consent to marketing text messages as a condition of purchase.
Shake Shack may terminate any text messaging services or your participation in our text message program 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 will still apply.
Costs of Shake Shack Text Messages. Shake Shack does not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
Frequency of Text Messages. We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our services (e.g. if you communicate with us through text message, or if you send a HELP request).
Participating Carriers. Shake Shack text messages are intended to be supported on U.S. telecom carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers. Shake Shack and the mobile carriers (for example, Verizon, AT&T and T-Mobile) are not liable for delayed or undelivered messages.
Eligibility. By consenting to receive Shake Shack text messages, you represent that you are 18 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms. You further represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for texts.
Opting Out of Shake Shack Text Messages. To opt out of text messages, you must text STOP to that number. After doing so, we may send you confirmation of your opt-out via text message. You further agree that texting STOP in response to our text message is the only reasonable method of opting out of our text messages.
Modifications to these SMS Terms. We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in Shake Shack’ text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
Consent to Recording and Monitoring
You acknowledge and agree that any telephone calls, online chats, text messages and other similar electronic communications between you and our representatives may be recorded, transcribed or monitored for training, quality assurance or other business purposes and that such recordings or transcriptions may be stored and retained by us or used in accordance with our Privacy Policy.
No Warranties
Shake Shack makes no representations or warranties regarding the Online Services and Materials.
WE DO NO WARRANT THAT THE ONLINE SERVICES OR MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE USE OF SHAKE SHACK ONLINE SERVICES OR MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES, OR THE RESULTS OBTAINED THEREFROM, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE.
THE ONLINE SERVICES AND MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTY SERVICE PROVIDERS, PARTNERS, SPONSORS, LICENSORS, LICENSEES, OR THE LIKE (“PROVIDERS”) IN CONNECTION WITH OR RELATED TO YOUR USE OF SHAKE SHACK ONLINE SERVICES AND MATERIALS PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES.
Limitations of Liability
IN NO EVENT SHALL WE OR ANY OF OUR PROVIDERS BE LIABLE TO ANY PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, PROGRAMS, OR DATA) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE ONLINE SERVICES AND MATERIALS, PROGRAMS, FEATURES, AND SERVICES MADE AVAILABLE THROUGH THE ONLINE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
Indemnification
You agree to indemnify, defend, and hold harmless Shake Shack and all of its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and expenses that arise directly or indirectly out of or from: (1) your breach of these Terms and Conditions; (2) your activities in connection with the Online Services, and Materials, programs, features, and services made available through the Online Services; (3) your use of the Online Services; (4) your failure to comply with any applicable laws or regulations in connection with the Online Services; (5) your negligence, willful misconduct, or violations of the intellectual property or other rights of any person in connection with the Online Services; or (6) any of your dealings or transactions with other persons, persons or third party platforms resulting from use of the Online Services. You shall not settle any such claim without the prior written consent of Shake Shack. These obligations will survive any termination of these Terms and Conditions.
Mandatory Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.
Informal Dispute Resolution Procedure. If a Dispute (as that term is defined below) arises between you and Shake Shack, we are committed to working with you to try to reach a reasonable resolution. For any such Dispute, both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. Such informal resolution requires first sending a written description of the dispute to the other party. For any Dispute you initiate, you agree to send the written description of the Dispute along with the email address associated with your account, if applicable, to the following email address: [email protected]. 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; the specific relief sought; and proof of your relationship with Shake Shack. If the Dispute is not resolved within sixty (60) days after receipt of the written description of the Dispute, you and Shake Shack agree to the further Dispute resolution provisions below.
The aforementioned informal dispute resolution process (the “Informal Dispute Resolution Procedure”) is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
Mutual Arbitration Agreement. If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided in herein) subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to [email protected]. If you are a Shake Shack account holder, any demand initiating arbitration, whether filed by You or Shake Shack, must include the email address you used to create your account with Shake Shack.
You agree that by using the Online Services in any way, you unconditionally consent and agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Shake Shack and/or its parent, subsidiaries, affiliates and each of their respective current or former members, officers, directors and employees (all such individuals and entities collectively referred to herein as the “Shake Shack Entities”) arising out of, relating to, or connected in any way with Shake Shack’s website or app or these Terms and Conditions, including the determination of the scope, enforceability, or applicability of this Arbitration Agreement (as defined below), including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) (“Dispute”) will be resolved exclusively by final and binding arbitration in accordance with this Section (“Arbitration Agreement”). This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
Notwithstanding the parties' decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party's right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
Class Arbitration and Collective Relief Waiver. YOU AND SHAKE SHACK ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THE “BATCH ARBITRATION” SUBPART BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR COLLECTIVE 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, UNLESS SHAKE SHACK PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
With the exception of this “Class Arbitration and Collective Relief Waiver” subpart and the “Batch Arbitration” subpart below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, this “Class Arbitration and Collective Relief Waiver” subpart or the “Batch Arbitration” subpart below is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Shake Shack shall be entitled to arbitrate their dispute.
Arbitration Rules. The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, 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 www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at [email protected] .
Arbitration Location and Procedure. For all U.S. residents, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in New York City, New York (unless otherwise agreed by the parties). The arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered 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 NAM 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 the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
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 you and Shake Shack submit to the arbitrator, unless the arbitrator determines that a hearing is necessary or the parties agree otherwise. 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.
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. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Shake Shack (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
Batch Arbitration. 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 against Shake Shack (“Mass Filing”), the parties agree (i) 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; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) 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; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Shake Shack 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 (vi) 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. 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 the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with Shake Shack 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. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. 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. Unless Shake Shack otherwise consents in writing, Shake Shack 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 this “Batch Arbitration” subpart. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this “Batch Arbitration” subpart is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Shake Shack shall be entitled to arbitrate any claim that is a part of the Mass Filing.
Mediation Following First Batch in a Mass Filing. The results of the first batch of demands will be given to a NAM mediator selected from an initially proposed group of 5 mediators, with Shake Shack and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Shake Shack, the mediator and the remaining claimants will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If they are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Shake Shack or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in court. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Shake Shack nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Opt out of arbitration under this section shall not be construed as opt out of the section titled “Class Action Waiver” below. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
Arbitrator’s Decision. The arbitrator’s decision shall be controlled by the terms and conditions of these Terms and Conditions and any of the other agreements referenced herein that the applicable user may have entered into in connection with the Online Services. 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 the terms of the “No Warranties” and “Limitations of Liability" sections of these Terms and Conditions as to the types and the amounts of damages or other relief for which a party may be held liable. Except for decisions in arbitrations that are joined together in a single batch, no individual 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 if authorized under applicable substantive law governing the claims in the arbitration.
Fees. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Shake Shack will pay any filing and hearing fees in in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement.
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 (including as specified in the “Batch Arbitration” subpart) 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 Arbitration Agreement 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.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to [email protected] with the subject line, "ARBITRATION OPT-OUT." The notice must be sent within thirty (30) days of (a) March 11, 2024 ; or (b) your first use of the Online Services, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you reject any such changes by opting out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law. If you do opt out of the Arbitration Agreement, any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, Shake Shack also will not be bound by it.
Changes. Shake Shack will provide thirty (30) days' notice of any material changes to this “Mandatory Arbitration” section or the “Class Action Waiver” section below. Any such changes will go into effect 30 days after Shake Shack provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If Shake Shack changes this “Mandatory Arbitration” section after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Online Services 30 days after such change will be deemed acceptance of those changes.
Class Action Waiver
You may only resolve Disputes with Shake Shack on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action. Except as described in the “Batch Arbitration” subpart of the “Mandatory Arbitration” section above, class actions, class arbitrations, collective actions, private attorney general actions and consolidation with other arbitrations aren't allowed. Changes can be made to this section as detailed in the “Changes” subpart of the “Mandatory Arbitration” section above.
International Users and Choice of Law
The Online Services are controlled, operated, and administered by us and our service providers from offices within the United States. We make no representation that Materials on the Online Services are appropriate or available for use at other locations outside of the United States, and access to them from territories where their contents are illegal is prohibited. You may not use the Online Services or export Materials in violation of U.S. export laws and regulations. If you access the Online Services from locations outside of the United States, you are responsible for compliance with all local laws. These Terms and Conditions and our Privacy Policy shall be governed by the laws of the State of New York, without regard to conflict of laws provisions or principles.
No Agency Relationship
Neither these Terms and Conditions, nor any Materials, programs, features, or services of the Online Services, create any partnership, joint venture, employment, or other agency relationship between Shake Shack and you. You may not enter into any contract on our behalf or bind us in any way.
Notices
We may notify you via postings or via e-mail. All notices given by you or required from you under these Terms and Conditions shall be in writing and addressed to Shake Shack using the information in the “Contact Us” section below. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
You consent to receive notifications from Shake Shack electronically and agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to it in an unchanged form. You agree to keep your contact information current.
Termination and Violation of these Terms and Conditions and Remedies
You agree that Shake Shack may, in its sole discretion and without prior notice, block, suspend, and/or terminate your access to any or all of the Online Services. You also agree that any violation, or threatened violation, by you of these Terms and Conditions constitutes an unlawful and unfair business practice, and will cause irreparable and unquantifiable harm to Shake Shack. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
If Shake Shack takes legal action against you as a result of your violation of these Terms and Conditions, we will be entitled to recover from you (unless otherwise stated in the Arbitration Agreement , and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Shake Shack. You agree that Shake Shack will not be liable to you or to any third party for termination of your access to the Online Services.
The failure of Shake Shack to comply with these Terms and Conditions because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state, or local governmental authorities, or for any other reason beyond the reasonable control of Shake Shack shall not be deemed a breach of this agreement.
Entire Agreement, Claims Limitations, Severability, and Waiver
These Terms and Conditions, together with our Privacy Policy and any other applicable terms included within the Online Services, and/or Materials, programs, features, and services made available through the Online Services, as each is currently posted on the Online Services, constitute the entire agreement between us and you with respect to your use the Online Services and Materials, and supersede all previous written or oral agreements between us and you with respect to such subject matter. The headings in these Terms and Conditions are for your convenience and reference. These headings do not limit or affect this agreement.
Any cause of action you may have arising out of or relating in any way to the Online Services must be commenced within one (1) year after the claim or cause of action arises or be forever barred (except that this provision does not apply to residents of New Jersey). If, for any reason, an arbitrator or a court of competent jurisdiction finally determines any provision of these Terms and Conditions, our Privacy Policy, or any portion thereof to be unenforceable, such provision shall be enforced to the maximum extent permissible so as to give the intended effect thereof, and the remainder of these Terms and Conditions and Policy shall continue in full force and effect.
No waiver of any provision of these Terms and Conditions will be binding unless in writing, no waiver of any provisions of these Terms and Conditions will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Shake Shack to exercise or enforce any right or remedy in these Terms and Conditions does not waive that right or remedy.
Contact Us
We welcome your questions, comments, and concerns about privacy. You can contact Shake Shack Customer Service online; by email at [email protected]; or by postal mail at Shake Shack Enterprises, LLC, 225 Varick Street, Suite 301, New York, NY 10014, Attn: Hospitality Team.