Master Media Subscriber Agreement

The Derek Dunn Team, Inc Master Media Subscription Agreement

 

MASTER SUBSCRIPTION AGREEMENT 

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS ACCESS AND USE OF THE SERVICES OFFERED BY THE DEREK DUNN TEAM, INC (“DDT”), INCLUDING ACCESS ON A MEMBERSHIP BASIS, A TRIAL BASIS, AND OR EVALUATION BASIS FOR EVALUATING WHETHER TO ENTER INTO FULL COMMERCIAL BUSINESS ARRANGEMENT WITH DDT – ALL SERVICES REFERRED HEREIN AS (“DDT SERVICES”). 

PLEASE READ VERY CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE SIGNING UP OR USING THE DDT SERVICES.  ACCESSING OR OTHERWISE USING THE DDT SERVICES REQUIRES YOU TO AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE PURCHASING OR ACCESSING ANY OF THE DDT SERVICES, YOU (HEREINAFTER “YOU” OR “MEMBER” OR “SUBSCRIBER”) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “MEMBER” OR “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE DDT SERVICES. 

  

TABLE OF CONTENTS 

1. DEFINITIONS 
2. FEES AND PAYMENT FOR PREMIUM SERVICES 
3. PROPRIETARY RIGHTS AND LICENSES 
4. CONFIDENTIALITY 
5. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS 
6. TERM AND TERMINATION 
7. NOTICES, GOVERNING LAW AND JURISDICTION 
8. GENERAL PROVISIONS 

 

1. DEFINITIONS 

1.1. Affiliates: “Affiliate” or “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

1.2. Additional Terms: “Additional Terms” or “Additional Trial Terms and Conditions” or “Terms of Use” shall mean terms outside of this Agreement that may appear on DDT’s Documentation for its services or on DDT’s Website. Any such Additional Terms are incorporated into this Agreement by reference and are legally binding. 

1.3. Confidential or Proprietary Information: Confidential Information or Proprietary Information shall mean the Content, Software, Documentation, and any information, technical data, or know-how considered proprietary or confidential by DDT including, but not limited to, DDT’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by DDT before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to the DDT Services. 

1.4. Effective Date: The Effective Date of this Agreement is the date in which You accept this Agreement by clicking a box indicating your acceptance, or by executing an Order Form that references this Agreement, or otherwise purchasing or accessing any of the DDT Services. 

1.5. Your Data: Your Data shall mean data or information, including personally identifiable information, which You enter, upload or otherwise provide into DDT forms, such as an Order Form, or into the environment provided to You, such as a mobile application or the Website, to access the DDT Services. 

 

2. FEES AND PAYMENT FOR SERVICES 

2.1. Fees. You shall pay all fees specified in Order Forms; Except as otherwise specified herein: (i) fees are based on DDT Services purchased and not actual usage; (ii) payment obligations are non-cancelable and fees paid are non-refundable; and (iii) the number of media designs purchased cannot be reduced during the relevant Subscriber Term. 

2.2. Invoicing and Payment. You will provide DDT with valid and updated billing information, or with a completed Order Form or alternative document reasonably acceptable to DDT that provides payment information. If You provide credit card information, You authorize DDT to charge Your credit card for all Subscriber Services listed in the Order Form for the initial Membership Term and any renewal Membership Term as set forth therein. Such charges shall be made in advance and automatically renewed on a monthly basis, or on the indicated reoccurring billing frequency as stated in the applicable Order Form. Regardless of the billing frequency, the charges shall be made within 7 days prior to the commencement of the applicable billing period. If the Order Form specifies that payment will be by a method other than a credit card, DDT will invoice You in advance and otherwise in accordance with the relevant Order Form. You are responsible for providing complete and accurate billing and contact information to DDT and notifying DDT of any changes to such information. Automatic renewal will continue unless You notify DDT prior to the commencement of the next Membership Term for which You are cancelling Your Membership, per Section 2.3 below. 

2.3. Cancellations for Subscriber Services. Cancellation for Subscriber Services are defined in Your Order Form.

2.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Subscriber Services is 30 or more days overdue, DDT may, without limiting DDT’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend DDT Services to You until such amounts are paid in full. 

2.5. Taxes. You are responsible for paying all taxes associated with earnings you may receive as a result if using the DDT Services. If DDT has the legal obligation to pay or collect taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You, unless You provide DDT with a valid tax exemption certificate authorized by the appropriate taxing authority. 

 

3. PROPRIETARY RIGHTS AND LICENSES 

3.1. Intellectual Property. You understand that You obtain no other rights whatsoever to the DDT Services, Content, Software and associated Documentation (if provided), or any related intellectual property rights of DDT. You understand that DDT owns all intellectual property rights to the DDT Services and associated Documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items. Therefore, Your right to use the DDT Services and associated Documentation (if provided) is a limited right to use or license, and not a transfer of ownership or title, and such license is limited to the terms and conditions of this Agreement. 

3.2. License to Use DDT Services. DDT grants You a worldwide, limited-term license, under DDT applicable intellectual property rights and licenses, to use the DDT Services acquired by You pursuant to Order Forms, subject to those Order Forms and this Agreement. 

3.3. Permission to Use Feedback. You grant DDT a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the DDT Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of the DDT Services. 

3.4. No Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without DDT’s prior written consent. 

 

4. CONFIDENTIALITY 

4.1. Confidentiality: Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement. 

4.2. Protection of Confidential or Proprietary Information. You agree not to use any of the Confidential or Proprietary Information of DDT except as authorized under this Agreement. For the avoidance of doubt, Your Data as defined herein is not a part of Confidential or Proprietary Information. Except as explicitly authorized in writing by this Agreement or otherwise, You agree to: (a) not use, for Your own benefit or the benefit of any third party, the other party’s Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect your own Confidential Information of similar importance, to protect the DDT’s Confidential Information from unauthorized use, disclosure and publication. You acknowledge that the breach of this Section 4 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by You, Your agents or affiliates, DDT shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 

4.3. Permitted Use of Your Confidential Information. In the event that Your Data or any information provided by You to DDT is deemed Your Confidential Information, You grant to DDT a non-exclusive, royalty free right during Your use of the DDT Services, to use Your Confidential Information for the sole purpose of performing DDT obligations under this Agreement in accordance with the terms of this Agreement. Such rights shall include permission for DDT to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1. 

4.4. Legal Compliance. DDT maintains that its primary duty is to protect Your Data to the extent the law allows. DDT reserves the right to provide Your Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If DDT is required by law to make any disclosure of Your Confidential Information that is prohibited or otherwise constrained by this Agreement, then DDT will provide You with prompt written notice (to the extent permitted by law) prior to such disclosure so that You may seek a protective order or other appropriate relief. Subject to the foregoing sentence, DDT may furnish that portion (and only that portion) of Your Confidential Information that it is legally compelled or otherwise legally required to disclose. 

 

5. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS 

5.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. 

5.2. Warranties. DDTwarrants that (a) this Agreement, and the Order Forms accurately describe in all material respects the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) DDT will not materially reduce the overall security of the Premium Services during a subscription term, (c) DDT will not materially reduce the functionality of the Subscriber Services during a subscription term, and (d) the Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 6.3 (Termination). 

5.3. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 

5.4. DISCLAIMER OF GUARANTEE. ALTHOUGH DDT WILL MAKE EVERY EFFORT TO MARKET TO PROSPECTIVE CLIENTS TO ENTER INTO CONTRACTS THROUGH THE DDT MARKETING SERVICES, DDT MAKES NO GUARANTEE THAT A TRANSACTION WILL BE CONSUMMATED AS A RESULT OF OUR MEDIA SERVICES. 

 

6. TERM AND TERMINATION 

6.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscriber Services hereunder have expired or have been terminated and are not renewed. 

6.2. Term of Premium Services. The term of each Subscriber Services shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Subscriber Services will automatically renew for additional periods equal to the expiring subscription term or for 6 months (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless DDT has given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.   

6.3. Termination. This Agreement may be terminated by each of the Parties at any time, provided that prior Notice is given under Section 6 of this Agreement, and that You will remain responsible for: (i) any obligations under this Agreement pertaining to any Appointments provided to You prior to said Notice of termination within the Prescribed Period. 

 

7. NOTICES, GOVERNING LAW AND JURISDICTION 

7.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. DDT’s Contact Information: Tel.: 949-232-0009; Email: derek@derekdunnteam.com. 

7.2. Governing Law. The law of California law shall govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. 

7.3. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Orange County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 

  

8. GENERAL PROVISIONS 

8.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and DDT regarding Your use of DDT Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, and (2) the applicable Order Form. 

8.2. Updates to this Agreement. DDT reserves the right to alter the terms and conditions of this Agreement at any time. If DDT updates this Agreement in any way, DDT will post the updated terms on its website or will notify You using reasonable efforts by any means. If You renews the term, or purchases additional DDT Services after the updated Agreement has been posted, You agree to the updated terms. 

8.3. Publicity. You hereby agree that DDT may, but is not obliged to, use Your name and refer to You as a user of the DDT Services in any publicity, press release, advertising or marketing material, throughout the world using any form of media. If You wish to use or display DDT trademarks or mention DDT in any publication, website, press release or in any other manner, You must obtain the prior written consent of DDT.

8.4. Force Majeure. DDT has no responsibility for and is released from all contractual obligations and liability (e.g. for damages) if its performance of these terms and conditions is affected by an event of force majeure. For the purpose of this clause, the term “force majeure” means and includes any event which was not under the control of DDT, or was not reasonably foreseeable, including, but not limited to any natural disaster such as thunderstorm, flood or storm, fire, national emergency, strike or equivalent labor action, or the unavailability of the Internet for reasons beyond the control of DDT. 

8.5. Injunctive Relief. You understand and agree that DDT shall suffer irreparable harm in the event that any Subscriber breaches any of its obligations under this Agreement and that monetary damages shall be inadequate to compensate DDT for such breach. Accordingly, You agree that, in the event of a breach or threatened breach by You of any of the provisions of the Agreement, DDT in addition to and not in limitation of any other rights, remedies or damages available to DDT at law or in equity, shall be entitled to an interim injunction, interlocutory injunction, and permanent injunction, in order to prevent or to minimize any such breach by You or any or all of Your partners, agents, representatives, and any and all persons directly or indirectly acting for, on behalf of, or with You. 

8.6. Indemnification for Actions of Representatives. In addition to any other remedies available to DDT, You shall indemnify DDT and its successors and assigns, and its and their respective officers, directors, shareholders, employees and agents, against any and all damages, claims, losses, liabilities and expenses of every kind and character, including without limitation, reasonable legal, accounting and other expenses, including reasonable attorney’s fees, for bodily injury, illness, death, loss, damage or destruction of property or violation of law, order or regulation (whether willful, reckless, negligent or in strict liability) arising out of any actions by You or any of Your representatives, including negligence, misrepresentations, strict liability, willful misconduct, or any other breach of duties by You or Your representatives that cause injury or harm a third party or Prospective Client. 

8.7. Actions of Prospective Clients. You agree to hold DDT and its successors and assigns, and its and their respective officers, directors, shareholders, employees and agents, harmless against any and all damages, claims, losses, liabilities and expenses of every kind and character, including without limitation, reasonable legal, accounting and other expenses, including reasonable attorney’s fees, for bodily injury, illness, death, loss, damage or destruction of property or violation of law, order or regulation (whether willful, reckless, negligent or in strict liability) arising out of any actions by third parties, including Prospective Clients, introduced during Appointments or through Leads, including negligence, misrepresentations, strict liability, willful misconduct, or any other breach of duties by said third parties or their representatives. 

8.8. Exclusion of Consequential Loss. In no circumstances shall DDT be liable for indirect, consequential, reliance, or special loss or damages or for lost revenues, lost savings, lost business opportunity or lost profits of any kind. 

8.9. Attorney’s Fees. In the event any litigation, arbitration, or other proceeding is brought for the interpretation or enforcement of this Agreement, or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, the prevailing Party or Parties shall be entitled to recover their reasonable attorneys’ fees, costs, and expenses actually incurred in connection therewith, in addition to any other relief to which she, it, or they may be entitled. 

8.10. Entire Agreement, Amendments, Prior Discussions. This Agreement constitutes the final, exclusive and complete statement of the party’s agreement respecting the subject matter addressed herein. This Agreement may not subsequently be amended or modified except by a writing signed by both parties hereto. 

8.11. Successors and Assigns. This Agreement is binding upon each party hereto and its successors. Neither party may assign or transfer any right or obligation under this Agreement without prior written consent of DDT. 

8.12. Severability. In the event that any provision or part of any provision of this Agreement shall be deemed to be void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full force and effect. 

UPDATED: 2021-06-01