D&A- Term & Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THEY GOVERN YOUR ACCESS TO AND USE OF Dunkin & Associates (“D&A”), SERVICES. INDICATE WHETHER YOU AGREE TO THESE TERMS AND CONDITIONS BY ACCESSING OR DOWNLOADING THE SYSTEM.
THIS AGREEMENT IS BETWEEN YOU AND D&A AND CAN BE ACCEPTED ONLY BY AN ADULT 18 YEARS OR OLDER. IF YOU ACCESS OR DOWNLOAD THE D&A SERVICES AND YOU DO NOT MEET THE AGE REQUIREMENT, D&A IS NOT LIABLE FOR ANY OF YOUR SUBSEQUENT ACTIVITIES.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS OR DOWNLOAD THE D&A SERVICES. OTHERWISE, YOUR ACCESS OR DOWNLOAD OF THE D&A SERVICES, AND YOUR AGREEMENT BELOW MEANS YOU HAVE ACCEPTED ALL TERMS AND CONDITIONS.
1. What This Agreement Covers. These Terms and Conditions (the “Agreement”) are entered into between you and Dunkin & Associates, LLC (“D&A”) and govern your access to and use of the D&A Services and the D&A website (the “Website”). The terms “User” and “you” refer to you, and the terms “D&A” or “us” refer to D&A. You must accept these Terms and Conditions before you can use any of the D&A Services. Additionally, you agree that D&A reserves the right to review your suitability for participation in the program. These Terms and Conditions will be available for you to view at all times on the Website at www.ddunkin.com. As between you and D&A, D&A is solely responsible for the Services. Neither Apple, Inc. (Apple Store), Google, Inc. (Google Play), or any other app store or marketplace are responsible for the Services or any contents.
2. Description of Services. D&A has developed a system or program for reporting new business and cancellations for different D&A managed programs. This system allows users to remit new business and cancellations to the appropriate entity for processing. Uploading new business through this system does not guarantee the processing entity will receive or accept this business. The user will also be able to generate reports from the system. This system does not guarantee the accuracy of these reports. The most accurate reports are provided directly from the processing company. Contact your representative if the system reports appear to be inaccurate. In an effort to maintain relevance, D&A reserves the right to update and modify the system to meet market demand.
3. Eligibility To Use D&A Services.
3.1. User Representations. By entering this Agreement you represent that:
3.2 D&A App and Software. The D&A Services are utilized through the D&A app, which must be downloaded and installed onto your mobile device, or through the D&A website.
4. Use of the Services.
4.1 Grant of License. D&A either owns, or has licenses to, the Services, and the intellectual property rights associated with them. Some components of the Services may be owned by Third Party Service providers, but D&A has a valid license, including the right to sublicense, from such Third Party Providers. D&A grants you a personal, limited, non-exclusive, revocable, non-transferable, royalty-free license, without the right to sublicense, to access and use the Services in accordance with this Agreement (the “License”). This License includes use of the Website, the D&A app, and any software, programs, documentation, tools, internet-based or mobile-based services, components, and any updates, including, but not limited to, software maintenance, Services information, help content, bug fixes and maintenance releases provided to you by D&A. The D&A Services are subject to the intellectual property rights of Third Party Service providers and their respective licensors, existing under any foreign, state or local laws or regulations, now or hereinafter in force and effect, and in any jurisdiction worldwide, including, without limitation, patent law, industrial rights law, copyright law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights whether under statutory or common law (or otherwise), and any and all national, foreign, and state registrations, applications, renewals, extensions and restrictions of any of the foregoing.
4.2 Restrictions on Use. You must comply with all laws, rules and regulations applicable to your use of the Services. You will not, and will not permit any third party to, do or attempt to do any of the following: (a) access or monitor any material or information in the Services using any manual process or robot, spider, scraper or other automated means; (b) copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, loan or distribute any material or information provided to you by D&A; (c) use the Services in any manner that would interfere with the rights of any third party; (d) take any action that could compromise the security of the Services; (e) violate the restrictions in any robot exclusion headers in any aspect of the Services, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable disabled features or functionalities of the Services, or decompile, disassemble or otherwise reverse engineer the Services; (f) transfer any rights granted to you under this Agreement; (g) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by other users, or impose an unreasonable or disproportionately large load on D&A’s infrastructure, including but not limited to excessively high volume data transfers or bandwidth use; or (h) otherwise use the Services except as permitted by this Agreement.
4.3 User Content and Data. “User Generated Data” means any and all information that is generated by your use of the Services, including automatic reporting and other tools that give you the ability to create, post and distribute various forms of content for and in connection with the Services, including, but not limited to, pictures, photographs, videos, and other information, including content generated by you.
5. User Permission for Text Messaging/Alerts and E-Mail.
5.1 You grant D&A express written consent to receive autodialed and prerecorded message calls, text messages or push notification alerts from D&A, or those Third Party Services providers acting on D&A’s behalf, at any mobile telephone number you provide to D&A, regardless of your registration of your mobile device number on any state or federal “do not call” registry. Your express, written permission applies to messages and alerts regarding the D&A Claims Management Services and any optional Services you have elected to receive. By providing your email address to D&A, you agree that D&A, or those Third Party Services providers acting on D&A’s behalf, may e-mail you Services use information, and special offers, promotions and updates with regard to the Services, regardless of your registration of your mobile device number on any state or federal “do not email” registry.
6. Intellectual Property.
6.1 Intellectual Property Rights. D&A either owns, or has licensed, all U.S. legal right, title and interest in and to the Services, including but not limited to any trademark, copyright, patent, trade secret, trade dress, service marks and other worldwide intellectual property rights as they relate to Services (the “Intellectual Property”). These Terms and Conditions do not grant you any rights with respect to the Intellectual Property.
6.2 Copyright Infringement. D&A reserves the right to terminate your access to the Services in the event you infringe on any copyright rights of D&A or any third party. D&A also reserves the right to remove any User Content or any other material posted by a User that is alleged to infringe the copyrights of others. If you believe that any material posted to any of the Services constitutes copyright infringement, you should provide the following information to D&A at the address provided in Section 14.1 below: (a) the signature of the person authorized to act on behalf of the owner of the copyright that is allegedly being infringed; (b) a description of the copyright-protected work that is allegedly being infringed; (c) the location of such material in the Services; (d) your address, telephone number, and email address; (e) a written statement by you stating your good faith belief that the use of the allegedly infringing material is not authorized by the copyright owner or applicable law; and (f) a written statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf. By submitting this notice, you agree that D&A may provide the information provided by you to the person who posted the allegedly infringing material. In the event that any material that you posted to any of the Services is removed by D&A, you may send to D&A at the address provided in Section 14.1 a counter-notice containing the information required by 17 USC § 512(g)(3), which D&A will forward to the party who alleged the infringement. In the event that the party who alleged the infringement does not file any action seeking a court order to restrain you from engaging in the infringing activity within ten (10) business days of receiving the counter-notice, D&A may, in its sole discretion, reinstate the removed material.
7. Electronic Communications; E-SIGN Disclosure and Consent Notice.
7.1 Consent to Receive Communications Electronically. This Section 7 describes how D&A communicates with you electronically, provides additional detail about the Electronic Communications we provide you, and sets out the hardware and software requirements you need to receive these Electronic Communications.
7.3 Receipt of Electronic Communications; Contact Information. Electronic communications will be deemed received by you within 24 hours of the time such communication is posted or sent to you. It is your responsibility to keep your primary email address current so that D&A can send you Electronic Communications. You agree that if D&A sends you an Electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive Electronic Communications, D&A will be deemed to have provided the Electronic Communication to you. You may not be able to transact using our Services until we receive a valid, working primary email address from you. If you use a spam filter or similar software that blocks or re-routes emails from senders not listed in your email address book, we recommend that you add D&A to your email address book so that you can receive Electronic Communications by email. You can update your primary email address by contacting D&A at the address provided in Section 14.1.
7.4 Required Hardware and Software. You are responsible for maintaining all software and hardware necessary for receiving, viewing and maintaining record of the Electronic Communications. By your acceptance of this Agreement, you represent that you will maintain all hardware and software necessary to receive, view and maintain (including, but not limited to saving and/or printing) any Electronic Communications provided to you. You must have: (a) a valid email address on file with D&A; (b) a computer, mobile device, tablet or similar device with internet access and current browser software and computer software that is capable of receiving, accessing, displaying, and either printing or storing Electronic Communications received from us; (c) and sufficient storage space to save Electronic Communications (whether presented online, in emails or .pdf) or the ability to print Electronic Communications. We will notify you if there are any material changes to the hardware or software needed to receive Electronic Communications from us. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Electronic Communications for your records. You may print or save a copy of these Electronic Communications for your records as they may not be accessible online at a later date.
7.5 Additional Copies. Additional copies of any Electronic Communication may be provided to you without charge by contacting D&A within 90 days of the original date of the communication. You may also request paper copies of any electronic communication within 90 days of the communication by contacting D&A at the address provided in Section 14.1, but D&A reserves the right to assess a reasonable fee for providing such paper copies.
7.6 How To Withdraw Your Consent. You may withdraw your consent to receive Electronic Communications by contacting D&A at the address provided in Section 14.1. If you fail to provide or if you withdraw your consent to receive Electronic Communications, D&A reserves the right charge you additional fees for paper copies.
7.7 Federal Law; Termination and Changes. You acknowledge and agree that your consent to Electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you and we both intend that the E-SIGN Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. We reserve the right, in our sole discretion, to discontinue the provision of your Electronic Communications, or to terminate or change the terms and conditions on which we provide Electronic Communications. We will provide you with notice of any such termination or change as required by law.
8. Modification. D&A may change, modify or amend this Agreement by providing you notice of such change by electronic communication in accordance with the terms of Section 7 of this Agreement. Such changes will become effective 24 hours after being posted or sent to you in the manner set forth in Section 7. Your continued use of the Services after the effective time of any such changes will constitute your acceptance of the changes. In the event you do not agree with any such changes, your sole and exclusive remedy is to terminate your use of the Services.
9.1 Your Right to Terminate. You may terminate this Agreement and your use of the Services at any time by deactivating your account, or by notifying D&A in writing at the address provided in Section 14.1 below.
9.2 D&A’s Right to Terminate. D&A may terminate this Agreement by terminating your access to the Services at any time and for any reason, in its sole and absolute discretion without liability. D&A may also suspend the Services if D&A determines, in its sole discretion, that you (a) have violated this Agreement, (b) pose a fraud or other legal risk to D&A, or (c) have provided false, incomplete, inaccurate or misleading information or have otherwise engaged in fraudulent or illegal conduct.
9.3 Effect of Termination. Upon termination of this Agreement and your use of the Services the license granted to you under this Agreement will immediately end and you must immediately stop using the Services.
10. Disclaimer of Warranties.
10.1 Disclaimer of D&A Warranties. THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THOUGH D&A, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, D&A, ITS PARENTS, SUBSIDIARIES AND AFFILIATES, MAKE NO REPRESENTATIONS AND DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, D&A, ITS PARENTS, SUBSIDIARIES AND AFFILIATES DO NOT WARRANT THAT ANY CONTENT OF THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECT OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. D&A SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES, ANY CONTENT THEREON OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
10.2 Disclaimer of Warranties Related to Third Parties. D&A DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY OR LIABILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH THE SERVICES.
11. Limitation of Liability.
UNLESS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL D&A, ITS PARENTS, SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, OWNERS, EMPLOYEES OR AGENTS (THE “D&A PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH THE USE, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED DAMAGES ARE BASED ON A CLAIM OR ACTION IN CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF DUTY, INDEMNITY, CONTRIBUTION OR OTHERWISE, EVEN IF THE D&A PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OF LOSS. UNLESS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT SHALL THE D&A PARTIES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT AND THE USE OF THE SERVICES EXCEED $500.00.
12. Indemnification. You will indemnify, defend and hold harmless D&A, its parents, subsidiaries and affiliates, and its and their directors, officers, owners, employees, agents, consultants, contractors and other representatives (collectively, the “Indemnified Parties”) from and against any and all claims, demands, causes of action, debts, losses, liabilities, damages, judgments, settlements, tax assessments, penalties, interest, and expenses, including reasonable attorneys’ fees, arising out of, related to, or which may arise from: (a) your use of the Services; (b) your actual or alleged breach of or noncompliance with any term of this Agreement; (c) your violation of any right of a third party in connection with your use of the Services, including but not limited to any right of privacy, publicity rights, or intellectual property rights of such third party; (d) your negligence or violation or alleged violation of any federal or state law, rule or regulation; or (e) any other party’s access and/or use of the Services.
13. Governing Law; Dispute Resolution. This Agreement and any claim, action or dispute arising hereunder will be governed by the laws of the State of Texas, without regard to its conflicts of law principles. We are located in Texas and that is where you entered into this Agreement. IN THE EVENT OF ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOU AND D&A SHALL FIRST ATTEMPT IN GOOD FAITH TO PROMPTLY RESOLVE SUCH DISPUTE THROUGH NEGOTIATION. IN THE EVENT OF ANY DISPUTE, YOU (OR YOUR AUTHORIZED REPRESENTATIVE) AND D&A SHALL MEET AT LEAST ONCE TO NEGOTIATE IN GOOD FAITH TO RESOLVE THE DISPUTE. EITHER YOU OR D&A MAY REQUEST TO MEET TO CONDUCT SUCH NEGOTIATION OF A DISPUTE WITHIN FIFTEEN (15) CALENDAR DAYS OF SUCH REQUEST.
IF YOU AND D&A ARE NOT ABLE TO CONDUCT SUCH MEETING WITHIN THE SAID FIFTEEN (15) CALENDAR DAY PERIOD, OR ARE UNABLE TO RESOLVE THE DISPUTE WITHIN THIRTY (30) CALENDAR DAYS AFTER THE INITIAL NEGOTIATION MEETING, THEN YOU AND D&A AGREE TO SUBMIT THE DISPUTE TO MEDIATION. EITHER YOU OR D&A MAY REQUEST MEDIATION UPON WRITTEN NOTICE TO THE OTHER PARTY, AND THE MEDIATION MUST TAKE PLACE WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE SUCH NOTICE IS GIVEN. YOU AND D&A MUST JOINTLY APPOINT A MUTUALLY ACCEPTABLE MEDIATOR.
IF YOU AND D&A ARE UNABLE TO AGREE UPON THE APPOINTMENT OF A MEDIATOR WITHIN SEVEN (7) CALENDAR DAYS AFTER EITHER YOU OR D&A HAS GIVEN NOTICE OF A DESIRE TO MEDIATE THE DISPUTE, BOTH YOU AND D&A SHALL EACH DESIGNATE A MEDIATOR, AND SUCH MEDIATORS SHALL SELECT A THIRD MEDIATOR WHO SHALL ACT AS THE NEUTRAL MEDIATOR IN ASSISTING YOU AND D&A IN RESOLVING THE DISPUTE. ALL COSTS, EXPENSES AND FEES WITH REGARD TO ANY MEDIATION, EXCEPT FOR EACH PARTY’S ATTORNEYS’ FEES, SHALL BE DIVIDED EQUALLY BETWEEN YOU AND D&A, AND YOU AND D&A SHALL EACH BE SOLELY RESPONSIBLE FOR PAYMENT OF SUCH COSTS, EXPENSES AND FEES, AND EACH PARTY SHALL ALSO BE RESPONSIBLE FOR PAYMENT OF ITS OWN ATTORNEYS’ FEES, IF ANY, RELATED TO SUCH MEDIATION. ALL MEDIATIONS SHALL OCCUR IN THE CLOSEST TEXAS CITY TO YOUR PERMANENT RESIDENCE, OR IF YOUR PERMANENT RESIDENCE IS OUTSIDE OF THE STATE OF TEXAS OR THE U.S., THEN IN DALLAS, TEXAS. IN THE EVENT THAT THE DISPUTE OR CLAIM IS RESOLVED SUCCESSFULLY THROUGH THE MEDIATION PROCESS, SUCH RESOLUTION WILL BE DOCUMENTED BY A CONFIDENTIAL WRITTEN AGREEMENT EXECUTED BY OFFICERS OF YOU AND D&A.
IF THE MEDIATION DOES NOT SUCCESSFULLY RESOLVE THE DISPUTE OR CLAIM, THE MEDIATOR SHALL PROVIDE WRITTEN NOTICE TO YOU AND D&A REFLECTING THE SAME, AND EITHER YOU OR D&A MAY THEN PROCEED TO SEEK REMEDY WITHIN THE BOUNDS AND REGULATIONS OF A COMPETENT COURT OF LAW WITHIN THE STATE OF TEXAS.
14.1 Notice. In addition to the Electronic Communications authorized in Section 7, communications may be made by mail. Notice to D&A may be made by mail to:
Dunkin & Associates
Address located at - http://www.ddunkin.com/#contact
14.2 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted assignment will be deemed void. D&A reserves the right to assign this Agreement and the rights and obligations hereunder to any third party without notice to you. This Agreement will be binding and inure to the benefit of the parties hereto and their successors and permitted assigns.
14.3 Force Majeure. Without limiting the applicability of the terms of Section 11, the D&A Parties shall have no liability for any failure or delay resulting from conditions beyond the reasonable control of such party, including but not limited to any industrial dispute, acts of war, governmental action, acts of terrorism, acts of God, labor conditions, power failures and Internet or mobile network disturbances.
14.4 Entire Agreement. This Agreement represents the Parties’ entire understanding with respect to the subject matter contained herein and supersedes and cancels all prior written or oral contracts, agreements and understandings of the parties with respect to the subject matter of this Agreement.
14.5 Survival. The terms of this Agreement which are expressly, or by implication, intended to continue in force notwithstanding the termination of this Agreement or your termination of use of the Services for any reason, will survive termination or expiration of this Agreement.
14.6 No Waiver; Severability. The failure of D&A to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be removed to the minimum extent necessary and the remainder of this Agreement shall remain in full force and effect.
14.7 Conflicts. In the event of a conflict between this Agreement and any other terms and conditions or policies of D&A , this Agreement shall prevail as to the subject matter contained herein.
14.8 Headings and Subheadings. The use of titles and headings with reference to certain portions of this Agreement is solely for the convenience of the reader and are of no legal effect.
Effective: September 3, 2014