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Terms of Service

THE HONEY DEW DONUTS® REWARDS APP

Last updated: March 1, 2019

Welcome to the Honey Dew Donuts® Rewards App (the “App”). These Terms of Service (the “Terms”) govern your use of the App. By using the App, you agree, without limitation or qualification, to be bound by these Terms and the Privacy Policy. If you do not agree, please do not use the HDA App.

Definitions

“HDA”, “we,” “our”, “us” or the “Company” shall mean Honey Dew Associates, Inc., a Massachusetts corporation.

The “Content” shall mean all materials from time to time on the App including removed items previously included.

The “HDA Parties” shall mean HDA and its franchisees including our and their directors, officers, managers, owners, employees, representatives, agents, and their successors and assigns.

The “Related Parties” shall mean the HDA Parties’ business partners, suppliers, joint venture partners, independent contractors, distribution partners, and third-party service providers, and each of their respective affiliates, directors, officers, managers, owners, employees, representatives, agents, successors and assigns engaged in services relating to the App, the Content or the Services and specifically including Punchh, Inc., which provides the platform for the Honey Dew Donuts® Rewards program and administers the program for HDA, and any third party servicers used by such Related Parties.

The “Services” shall refer to access to the Honey Dew Donuts® Rewards program and all Content on the App including links to HDA’s website, links to branded pages on third party platforms (i.e., social networking services), mobile applications, direct marketing campaigns, other online communications, and offline communications and including, the use of virtual gift cards.

“You,” “your,” “user,” and “users,” as used herein, refer to each individual accessing the App for any reason.

“Qualified Purchases”, as used herein, refer to purchases of non-exempt items at participating Honey Dew Donuts® Shops. Exempt items are donations to charity, payments of taxes, purchase of newspapers and purchases of and/or reloading of Honey Dew Donuts® gift cards (but purchases of items with gift cards are Qualified Purchases).

GENERAL PROVISIONS

We may update, change, alter, amend or supersede the Terms at any time. ANY ACCESS OR USE OF THE APP BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to the Terms by anyone other than HDA shall be valid or enforceable against HDA unless expressly agreed to by HDA in a writing signed by a duly authorized officer of HDA.

The Content provided on the App are protected by law, including, but not limited to, United States copyright laws and international treaties. You are responsible for reviewing these Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder.

PLEASE NOTE: EXCEPT FOR YOUR RIGHTS TO INITIATE SMALL CLAIMS ACTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND HDA WILL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION. ARBITRATION INVOLVES LESS DISCOVERY AND COURT REVIEW THAN CIVIL ACTIONS IN COURT. AN ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE DISPUTE. YOU WAIVE ANY RIGHT TO BRING AN ACTION IN COURT BEFORE A JUDGE OR JURY, YOUR RIGHT TO BRING PROCEEDINGS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR ARBITRATION, AND YOUR RIGHT TO A JURY TRIAL. BY ACCEPTING THESE TERMS, AND TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO BE BOUND BY THE MORE DETAILED ARBITRATION AND WAIVER PROVISION IN SECTION 10, INFRA. PLEASE READ IT CAREFULLY.

1. ELIGIBILITY

By visiting the App, using our Services and/or accepting these Terms, you represent and warrant to us that you have the right, authority, and capacity to agree to and abide by these Terms. You also represent and warrant to us that you will use the App, and its Content and Services in a manner consistent with any and all applicable laws and regulations.

Whenever you provide us information, you agree to: (a) provide true, accurate, current and complete information and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is, or we have reasonable grounds to suspect is, untrue, inaccurate, not current or incomplete, we may, without notice, suspend or terminate your access to our App and refuse you any current or future use of our App, in whole or in part.

2. USE OF SERVICES

2.1 Use Restrictions

These Terms govern the App and Services, and any upgrades provided by the Company that replace and/or supplement the previously existing App and Services, unless such upgrade is accompanied by its own Terms of Service.

The Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by HDA or by third parties that have licensed their use to HDA. Title to all portions of the Content remains with HDA or such third parties. Any use of the Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.

Except as expressly provided herein, no portion of the Content may be copied, reproduced, distributed, republished, downloaded, displayed, modified, sold, licensed, used to create derivative works, used for public performances, posted or transmitted in any form or by any means now or hereafter developed including without limitation by transferring, downloading, or otherwise copying any Content onto any disk drive or other storage medium. Any use of any portion of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by HDA, is strictly prohibited.

You shall comply with any additional rules for your use of other items included on the App, the Services or in the Content which may be, from time to time, included and which are expressly incorporated into these Terms by reference. The use of the Content on any other App or in a networked computer environment for any purpose is prohibited. All rights not expressly granted herein are reserved to HDA.

You hereby represent and warrant that you will not use or attempt to use the App, Services and Content, will not induce, participate or permit any third party in using or attempting to use the App, Services or Content, nor will you use our App or related software to upload, post, email, distribute, transmit, link, solicit or otherwise make available any Content or use our App, in any manner that:

(a) harasses, abuses, stalks, threatens, defames, or otherwise infringes upon or violates the rights of any person (including but not limited to rights of publicity, privacy or proprietary rights), or is vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, or racially, ethnically or otherwise offensive, hateful or abusive;

(b) is unlawful, harmful to minors, fraudulent, or deceptive or violates these Terms in any manner, or encourages conduct that would constitute a criminal offense or that gives rise to civil liability, or which solicits, facilitates, encourages, condones, or induces any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulation, infringes someone else's patent, trademark, trade secret, copyright or other intellectual property or other rights, or removes any proprietary notice or label in the Content;

(c) fails to comply with applicable third-party terms and conditions or other third-party policies;

(d) “mirrors” or attempt to “mirror” any Content regardless of the place it exists;

(e) uses technology or other means to access unauthorized content or non-public spaces or otherwise attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the App or any technology used in connection therewith of HDA, any of the HDA Related Parties or any of the Related Parties;

(f) uses any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the App, Services or Content, or use automated scripts to collect information from or otherwise interact with the App or any technology used in connection with the App by HDA, any of the HDA Parties or any of the Related Parties;

(g) introduces viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(h) disables or circumvents any security mechanisms used by the App, Services or Content or otherwise gains unauthorized access to any portion of the App, Services or Content or any other systems, technology or network utilized in connection with the APP by HDA, any of the HDA Parties or any of the Related Parties, whether by hacking, password “mining”, or any other illegal or improper means or otherwise damage, disable, overburden or impair the APP or any technology used in connection therewith by HDA, any of the HDA Parties, or any of the Related Parties;

(i) introduces viruses, worms, time bombs, corrupted files, Trojan horses or any other harmful computer code, files, or programs that are designed or intended to disrupt, interrupt, destroy, damage, overburden, impair or limit the functioning of any software, hardware, network, server or communications systems or equipment;

(j) attempts to gain unauthorized access to any HDA’s user account;

(k) uses any data mining robots ("bots"), spiders, hardware or software modules that add a specific feature or service by plugging into an existing larger system ("plug-ins"), or other data gathering and extraction tools, scripts, applications, or methods on this App;

(l) uses any device, software, or hardware to bypass any operational element or to interfere, or attempt to interfere, with the proper working of this App or activities conducted therein or the use of the App by any third parties, or technology used in connection with this App by HDA, any of the HDA Parties or any of the Related Third Party;

(m) takes any action that imposes an unreasonable or disproportionately large load on this App or its infrastructure or that adversely affects the App, any of the HDA Parties, any Related Parties or other customers;

(n) decompiles, reverse engineers, modifies, alters, reproduces, disassembles, creates derivative works from or derives the source code or otherwise attempts to derive the method of operation of the App or any technology used in connection therewith by HDA, any of the HDA Parties or any of the Related Parties;

(o) uses any meta tags or any other "hidden text" utilizing HDA’s name or any trademark of HDA, any of the HDA Parties or any of the Related Parties;

(p) frames or utilizes framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form), or otherwise alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the APP or used in connection therewith by HDA, any of the HDA Parties or any of the Related Parties;

(q) exceeds your limited access to the App as authorized by HDA;

(r) distributes or makes the App, Services or Content available over a network where it could be used by multiple devices at the same time;

(s) distributes, rents, leases, licenses, lends, loans, sells, resells, redistributes, sublicenses, or transfer any of rights to access or use the App, Services or Content, or any technology of HDA, any of the HDA Parties, or any of the Related Parties;

(t) uses any domain name of HDA, any of the HDA Parties, or any of the Related Parties as a pseudonymous return email address;

(u) constitutes unsolicited or unauthorized advertising, junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;

(v) combine any software or technology used in connection with the App by HDA, any of the HDA Parties, or any of the Related Parties, with any other software or service except as may be utilized by the App; and

(v) impersonates of any person or entity or misrepresents an affiliation with a person or entity, create a false identity, solicits a charity request, petition, chain letter or investment scheme, offers unsolicited goods or services, advertises or promotes, or provides material support or resources to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.

ANY BREACH OF ANY RESTRICTION HEREIN MAY SUBJECT YOU TO PROSECUTION AND/OR CLAIMS FOR INJUNCTIVE RELIEF AND/OR DAMAGES.

If you are in compliance with these Terms, and only for so long as you are in compliance with these Terms, the Company grants you a non-exclusive, limited, and non-transferable license to use the App, Services and Content. In connection therewith, HDA authorizes you to view, download and/or print a single copy of the Content solely for your own lawful, personal, non-commercial use but only if you include the following copyright notice: “Copyright © 2019, Honey Dew Associates, Inc. All rights reserved” and include all other copyright and proprietary rights notices which were contained in the Content.

HDA reserves the right, in its sole discretion, to refuse, discontinue, block and/or terminate your use of, and access to, the App, the Content, the Services or any portion thereof, at any time, for any reason or for no reason at all, without prior notice or any notice.

If you violate any of the Terms, your permission to use the App, Services and Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.

3. Using the App

3.1 The Rewards Program

When you download the App to your mobile devise, and register with your email address, you agree to participate in the Honey Dew Donuts® Rewards Program (the “Program”). The Program tracks Qualified Purchases and provides reward points which can be redeemed for subsequent purchases. Additionally, the App may provide special offers available to you.

The App will ask you to provide your location, so that we may readily direct you to the nearest participating Honey Dew Donuts® location. The App will allow you to scan barcodes on receipts to earn points through the camera on your mobile devise. Your devise’s “settings” will allow you to turn off this function, and you will have to manually inserted barcode data to earn points.

The App will permit the use of virtual gift cards via a credit card purchase.

ONLY ONE REWARD PER TRANSACTION IS PERMITTED. To the extent a reward earned or a special offer relates to a particular product, substitutions are not allowed. All rewards expire. Your App will provide information on current rewards and expirations.

3.2 User Submissions

The personal information you submit to HDA and the personal information we retain as a result of your use of the App, such as a record of your purchases, your location, and your credit card information are governed by the HDA Privacy Policy. To the extent there is an inconsistency between the Terms and the Privacy Policy, the Privacy Policy shall govern.

3.3 Your Account

Joining the Honey Dew Donuts® Rewards requires registration and your email address. Use of virtual gift cards through the App requires registration use of a credit card, and a password and user name. Please select a password that would not be obvious to someone trying to guess your password and change it regularly as an added precaution. You are responsible for maintaining the confidentiality of the password and account, and for restricting access to your devices, and you are fully responsible for all activities that occur under your password or account identification. You agree to immediately notify HDA of any unauthorized use of your password or account or any other breach of security. Without limiting any rights which HDA may otherwise have, we may, but need not, take any and all action, as we deem necessary or reasonable, to ensure the security of the App and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, HDA may rely on the authority of anyone accessing your account or using your password and in no event and under no circumstances shall HDA or any HDA Parties be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction under this provision, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorized access to your account or use of your password. You understand and agree that use of the App, Services and Content is not invulnerable to all security breaches, and that HDA makes no warranty, guarantee, or representation that use of any of our App is protected from viruses, security threats or other vulnerabilities.

You may not use anyone else's account at any time, without the permission of the account holder.

HDA reserves the right to refuse service, terminate accounts or memberships in its sole discretion and in no event shall HDA or any of the HDA Parties be liable to you for doing so or for any failure to do so, intentional or otherwise.

HDA and the HDA Parties shall not be liable for any nonperformance or delay in performance caused by any act beyond its reasonable control, including without limitation acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lock-outs, fire, flood, or any other Act of God, any law, regulation, ordinance, or other act or order of any court, government, or governmental agency, or delays, unavailability, errors, or other failures of the Internet or other data networks.

4. LIABILITY OF HDA AND ITS LICENSORS AND PARTNERS

THE USER OF THIS APP ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS APP AND THE INTERNET GENERALLY.

THE APP, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HDA DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE AND WARRANTIES OF NON-INFRINGEMENT. NO ADVICE OR CONTENT GIVEN BY HDA SHALL CREATE ANY WARRANTY.

YOU ACKNOWLEDGE THAT THE FUNCTIONS CONTAINED IN THE APP AND SERVICES MAY NOT BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS MAY OR MAY NOT BE CORRECTED, AND THAT THE APP, SERVICES OR THE INTERNET MAY NOT BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

HDA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF ANY CONTENT IN THE APP. YOU (AND NOT HDA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF YOUR OWN MOBILE DEVICE AND RELATED EQUIPMENT.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,

(A) HDA, THE HDA PARTIES AND THE RELATED PARTIES ASSUME NO OBLIGATIONS OR LIABILITIES TO YOU; AND

(B) YOU WAIVE ANY CLAIM FOR LIABILITY AGAINST HDA, THE HDA PARTIES, AND THE RELATED PARTIES, IN CONTRACT OR TORT, FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING FROM ANY ACT OR OMISSION BY THEM , ANY BREACH OR ALLEGED BREACH OF THE PRIVACY POLICY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APP, SERVICES, CONTENT, OR THE INTERNET GENERALLY. YOU EXPRESSLY WAIVE DAMAGES FOR LOSS OF ANTICIPATED PROFITS OR REVENUE OR OTHER ECONOMIC LOSS, EVEN IF HDA, THE HDA PARTIES OR THE RELATED PARTIES WERE EXPRESSLY ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES TO YOU.

IN NO EVENT SHALL ANY LIABILITY OF HDA, THE HDA PARTIES AND THEIR RELATED PARTIES EXCEED THE PRICE YOU PAID FOR HDA’S PRODUCT THAT IS THE SUBJECT OF THE CLAIM.

Please note that some jurisdictions may limit or not permit exclusion of certain implied warranties. Check your local laws for any restrictions or limitations regarding these provisions.

5. CONTACT WITH THIRD PARTIES AND THIRD-PARTY WEBAPPS

The HDA App and Services may contain hyperlinks to other internet sites such as HDA’s website, and social medial sites (the Third-Party Pages”), as well as to text, graphics, videos, images, music, sounds, and information belonging to or originating from other third-parties (collectively, “Third-Party Applications”). These links are provided solely as a convenience or benefit to users.

The inclusion of such hyperlinks or any reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier or otherwise of any third parties, does not indicate HDA’s approval, sponsorship, recommendations or endorsement thereof.

Your interactions with a third party on the App and Services are based on such third party’s participation or presence on the App and Services, are solely between you and the third party. HDA makes no representations or warranties with respect to the content, ownership, or legality of any such linked third-party websites. If you choose to leave the HDA App to access any Third-Party Pages or Third-Party Applications, you do so at your own risk. We encourage you to be aware when you leave our App and to read the terms and conditions and privacy statements of each and every website that you visit. We are not responsible for the practices or the content of such other websites.

We do not investigate, monitor, or review any Third-Party Pages or Third-Party Applications to ensure their accuracy, completeness, or appropriateness. HDA is not responsible for the Third-Party Pages or any Third-Party Applications accessed through the HDA App or Services. You agree that HDA shall have no liability with respect to any loss or damage of any kind incurred as a result of any dealings between you and any third party resulting from the presence of such third party on the HDA App or Services.

6. INDEMNITY

You agree to defend, indemnify, and hold HDA, its affiliates, licensors, suppliers, owners, employees, directors, officers, agents, business partners, affiliates, contractors, distribution partners, representatives and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the "HDA Parties") harmless from and against any claims, actions, demands, liabilities, and settlements including, without limitation, legal and accounting fees, resulting from, or alleged to result from, your use of the App, Services or Content, or your violation of these Terms. HDA reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.

7. MODIFICATION OR SUSPENSION OF THE HDA SERVICES

HDA may terminate, suspend, modify, discontinue, or suspend some or all of the HDA Services or any feature or portion thereof, or any Products offered through them, without notice or liability to you or any third party. Any such action may be temporary or permanent. In the event of a permanent termination, you are no longer authorized to access those HDA Services, but the restrictions imposed on you with respect to the Content, and the disclaimers, indemnities, and limitations of liabilities set forth in these Terms shall survive termination.

8. GENERAL

HDA makes no claims that the Content are appropriate or may be downloaded outside of New England. Access to the Content may not be legal by certain persons or in certain countries. If you access the HDA Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The following provisions survive the expiration or termination of these Terms for any reason whatsoever: Liability of HDA and its Licensors and Partners, Use Restrictions, User Submissions, Submission of Ideas, Indemnity, Choice of Law, Arbitration and Class Action Waiver, and Complete Agreement.

The App, Services and Content may include technical inaccuracies or typographical errors. HDA may make changes or improvements at any time but is under no obligation to do so.

9. CHOICE OF LAW

Except for trademark and copyright matters governed by the federal laws of the United States or any other jurisdiction, the foregoing provisions shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts, without regard to the principles of conflict of law thereof. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

10. MANDATORY AGREEMENT TO ARBITRATE ON AN INDIVIDUAL BASIS; CLASS ACTION WAIVER

Please read this Section 10 (“Arbitration Agreement”) carefully. It is part of your contract with HDA and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION, JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.

If you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue though any lawful means, including in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at 2 Taunton Street, Plainville, MA 02762. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 10 govern dispute resolution between us.

If we have been given an opportunity to resolve your complaint and are unable or have not done so within 60 days of your notice of such a claim sent to us, and if your dispute qualifies for hearing by a small claims court, you may pursue your claim in small claims court. Additionally, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY CLAIM, DEMAND, COUNT, CAUSE OF ACTION DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND HDA AND/OR ANY OF THE HDA PARTIES OR RELATED PARTIES, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING AND CONFIDENTIAL ARBITRATION. SUCH CLAIMS SHALL INCLUDE DISPUTES RELATING TO THE INTERPRETATION AND SCOPE OF THIS CLAUSE, THE ENFORCEABILITY OF THIS PROVISION, ANY CHALLENGE TO THE ARBITRATION PROVISION OR THAT AGREEMENT IS VOID, VOIDABLE OR OTHERWISE INVALID AND THE ARBITRABILITY OF THE CONTROVERSY. The arbitration shall be administered by the American Arbitration Association (AAA) or JAMS (or a substitute forum if both are unavailable). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed.

IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED, AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION). EXCEPT AS EXPRESSLY SPECIFIED HEREIN, YOU AND HDA AGREE TO WAIVE ANY RIGHTS TO LITIGATE CLAIMS IN A COURT, WAIVE ANY RIGHT TO A JURY TRIAL AND WAIVE RIGHTS TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY-GENERAL OR ANY OTHER REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS MAY ALSO BE UNAVAILABLE, OR MAY BE LIMITED IN ARBITRATION. There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court.

The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. This transaction shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (“FAA”). Any award of the arbitrator(s) shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. HDA will pay its arbitration costs and, in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, HDA will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation. If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Information on AAA or JAMS and their applicable rules are available at the following numbers and URLs: American Arbitration Association,(800) 778-7879, www.adr.org; JAMS, (800) 352-5267, www.jamsadr.com.

You and the Company must abide by these rules: (a) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (c) each side pays his, her or its own attorneys' fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law.

With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or U.S. federal court in Massachusetts.

Please note that some jurisdictions may not allow waiver of jury trial, mandatory arbitration and waiver of rights to class actions, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding these provisions.

11. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)-NOTICE AND TAKE DOWN PROCEDURES OR CLAIMS OF COPYRIGHT INFORMATION

Pursuant to Title II of the DMCA, all claims alleging copyright infringement for material that is believed to be residing on HDA’s App, System or server should be promptly sent in the form of written notice or e-mail to HDA through its attorney and Designated Agent:
Jack J. Mikels
Jack Mikels & Associates, LLP
One Batterymarch Park, Suite 309
Boston, MA 02169
Email jmikels@jackmikels.com

with the subject line “Takedown Request”.

NOTE: No other notices or communications should be sent to the Designated Agent, who is appointed solely for the purpose of receiving notices of claims alleging copyright infringement under the DMCA. Specific requirements for proper notification of claimed infringement are set forth in the DMCA (see 17 U.S.C. § 512(c)(3)). Valid notification must be a written communication that includes all of the following elements:

1. Signature of copyright owner or person authorized to act on behalf of the owner;
2. Identification of copyrighted work claimed to be infringed;
3. Identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address);
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.

It is the policy of HDA that upon receipt of a valid DMCA notice, we Verizon will remove or disable access to allegedly infringing material.

NOTE: There are substantial penalties for false claims (see 17 U.S.C. § 512(f) - providing sanctions for material misrepresentations of copyright infringement).

Filing a DMCA counter–notification:

If a notice of alleged copyright infringement under the DMCA has been wrongly filed against you, you may submit a counter-notification to HDA’s Designated Agent. Specific requirements for a proper counter–notification are set forth in the DMCA (see 17 U.S.C. § 512(g)(3)). A valid counter-notification must be a written communication that includes all of the following elements:

1. A physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which the service provider may be found, and that you will accept service of process from the complainant.

Upon receipt of a valid counter–notification, HDA will forward it to the original complainant who submitted the DMCA notice alleging copyright infringement. The original complainant will then have ten (10) days to notify HDA that it has filed a lawsuit relating to the allegedly infringing material otherwise HDA may restore the removed material or cease disabling access to it.

In an effort to protect the rights of copyright owners, HDA maintains a policy for the termination, in appropriate circumstances, of users of the HDA Services who are repeat infringers.

12. SEVERABILITY

If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of HDA to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance.

13. COMPLETE AGREEMENT

Except as expressly provided in a particular notice or disclaimer posted by or on behalf of HDA on the HDA Services, these Terms of Service, including the Privacy Policy, constitute the entire agreement between you and HDA with respect to the use of the HDA App, Services and Content.