Terms of Service
Welcome to Dan's Chocolates, a brand of Hauser Brands LLC (hereafter "Dan's"). This Dans.com Services Agreement is between Hauser Brands LLC and "you" (collectively, the "Parties").
You agree that this Agreement (defined below) is like any written negotiated agreement signed by you. By using the Dans.com web site and/or any Dan's web-based or installed software products, or other products made by Dan's, you agree to be bound by its terms, including terms regarding governing law and venue set forth in Section 16 (Governing Law). THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND, IF APPLICABLE TO A PARTICULAR SERVICE (DEFINED BELOW), ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED.
DAN'S MAY CHANGE, ADD, OR REMOVE ANY PART OF THIS AGREEMENT, OR ANY PART OF THE SERVICES, AT ANY TIME. IF ANY FUTURE CHANGES TO THIS AGREEMENT ARE UNACCEPTABLE TO YOU, YOU SHOULD REFUSE TO ACCEPT ANY UPDATED TERMS PROPOSED TO YOU BY DAN'S AND YOU MUST DISCONTINUE USING THE SERVICES.
"Dan's Software" means the client software applications/modules that may be downloaded and installed by you or automatically delivered to you when installing one or more additional client software applications provided by Dan's to enable you to use certain features of the Services from your desktop and any modified versions and copies of, and upgrades, updates and additions thereto, provided to you by Dan's at any time. In connection with your download and install of Dan's Software, you may be prompted to install the Microsoft .Net runtime.
"Content" means all audio, video, multimedia, data, text, images, documents, computer programs, proprietary fonts owned by a party other than Dan's, and any other information or materials uploaded by or on behalf of you or Participants in connection with the use of the Service.
"Information" means personally identifiable information.
"Participant" means a third party who interacts with the Services as a result of such party's relationship with or connection to you.
"Services" means, individually and collectively, a Dan's hosted application made available by Dan's as well as Dan's Software.
2. Use of the Services.
2.2 Authority to Use Services. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder, including having a valid license to use the software applications that generate Content, and the right to maintain Content and your Information or the Information of Participants on the Services. Otherwise, you are not permitted to maintain Content or such Information on the Services. You may not use the Services, or accept the terms of the Agreement, if (i) you are not of legal age to form a binding contract with Dan's, or (ii) you are prohibited by law from receiving or using the Services.
2.3 Access to Services. You acknowledge that your ability to access the Services may require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges) and that you are responsible for paying such fees. Dan's is not responsible for any equipment you may need to be able to access the Services.
2.4 Log-In Information. To gain access to and use the Services, you may be required to create a Dan's ID and password or other log-in ID and password ("Log-In Information"). You are responsible for all activity occurring under your Log-In Information, and you must keep your Log-In Information confidential and not share your Log-In Information with other individuals or third parties. Dan's has no obligation or responsibility with regard to your use, disclosure, or management of Log-In Information. Notwithstanding the foregoing, Dan's may require you to change your Log-In Information at any time, for any reason.
2.5 Individual Use. Notwithstanding anything set forth in this Agreement to the contrary, Dan's makes the Services available to you only for your individual use (including personal use and business use that directly benefits you individually).
2.6 Your Confidential Information. If you maintain confidential information, trade secrets, or other sensitive information on the Services, you are solely responsible for implementing safeguards for such information that are additional to the security measures the Services provide (as set forth in the Dan's security statement). 2.7 Access Levels. Certain Services enable you to specify the level at which such Services restrict access to Content. You are solely responsible for applying the appropriate level of access to Content.
3. License to Use the Services. Subject to your compliance with the terms and conditions of this Agreement, Dan's grants to you a non-exclusive, non-transferable, revocable right to access and use the Services. You shall not alter or remove any Marks or Dan's copyright notices included in the Service.
4. Term and Termination. a. This Agreement will continue to apply until terminated by either you or Dan's as set forth below. b. If you want to terminate the Agreement, you may do so by (i) notifying Dan's at any time, and (ii) closing your accounts for all of the Services. Your notice must be sent in writing, to Dan's address set forth in Section 19 (Miscellaneous). c. Dan's may at any time terminate the Agreement with you if: i. You have breached any provision of the Agreement (or have acted in a manner that indicates to Dan's that you do not intend to, or are unable to, comply with the Agreement; ii. Dan's reasonably believes that it is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); iii. The provision of the Services to you by Dan's is, in Dan's opinion, no longer commercially viable. This may include but is not limited to costs Dan's in bandwidth consumption and disk storage space used for your account; iv. Dan's has elected to discontinue the Services (or any part thereof); v. There has been an extended period of inactivity in your account; or vi. Your account is used by any third parties. d. Termination of your Services account may, at Dan's sole discretion, include one or more of the following: (i) removal of access to all offerings within the Services; (ii) deletion of your password (if applicable) and all related information, files, and Content associated with or inside your account (or any part thereof); and (iii) barring of further use of the Services. e. You agree that all terminations for cause shall be made in Dan's sole discretion and that Dan's shall not be liable to you or any third party for any termination of your account, or access to the Services and Content. f. Upon expiration or termination of the Agreement, you shall promptly discontinue use of the Services. However, the following sections of this Agreement shall survive any expiration or termination of the Agreement: 1, 2.2, 4(f), 5-10, 12, and 14-19.
5. Content. 5.1 Your Content. You may upload Content to the Services in connection with your use of the Services. Dan's does not verify, endorse, or claim ownership of any Content, and you retain all right, title, and interest in and to the Content. By maintaining your Content on the Services, you grant to Dan's a non-exclusive, worldwide, perpetual, royalty-free and fully paid license under all intellectual property rights to copy, distribute, transmit, publicly display, publicly perform, transmit, and reformat your Content solely to deliver the Services to you. Dan's shall make commercially reasonable efforts to block the uploading of Content to the Services that contains viruses detected by using industry standard virus detection software.
5.2 Your Representations and Warranties Regarding Content. You represent and warrant that (a) you are the owner, licensor, or authorized user of all Content; and (b) you will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Dan's, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, hateful, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
5.3. Dan's Access to Content. You acknowledge that the Services are automated (e.g., Content is uploaded using software tools) and that Dan's personnel will not access, view, or listen to any Content, except as reasonably necessary to perform the Services, including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by Dan's in good faith to conform to legal requirements or comply with legal process; or (d) enforce this Agreement, including investigation of potential violations hereof, as further described in Section 9 (Investigations).
6. Notification of Copyright Infringement. Dan's will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring in connection with the Services, please provide, pursuant to the DMCA, written notification of claimed copyright infringement to the Designated Agent for the Services (identified below), which must contain the following elements:
A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
A description of the copyrighted work or works that you claim have been infringed and identification of what content in such work(s) is claimed to be infringing and which you request to be removed or access to which is to be disabled;
A description of where the content that you claim is infringing is located on the Service;
Information sufficient to permit Dan's to contact you, such as your physical address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the use of the content identified in your Notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf.
Dan's Designated Agent for Notice of claims of copyright infringement can be reached as follows:
Attn: Copyright Agent
59 Tom Harvey Rd
Westerly, RI 02891
The Designated Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring in connection with the Services. Any other inquiries directed to the Designated Agent will not receive a response.
7. Links. Dan's may provide links to other Web sites or resources as part of the Services as a convenience to you. Dan's is responsible for the contents, products or services on any third party site, and the inclusion of any link does not imply that Dan's endorses the content on such third party sites. You may visit such third party sites solely at your own risk.
8.1 Use Restrictions. In connection with your access or use of the Services, you agree not to: (a) introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party's computer or property or information; (b) use the Services in any manner that could damage, disable, overburden, or impair any Dan's server, or the network(s) connected to any Dan's server or interfere with any other party's use and enjoyment of the Services; (c) attempt to gain unauthorized access to service, materials, other accounts, computer systems or networks connected to any Dan's server or to the Services, through hacking, password mining, or any other means; (d) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services; (e) host, on a subscription basis or otherwise, the Services, including any related application, (i) to permit a third party to use the Services to create, transmit, or protect any content, or (ii) to conduct conferences or online meeting services for a third party; (f) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses; (g) disclose, harvest, or otherwise collect Information, including e-mail addresses, or other private information about any third party without that party's express consent; (h) transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages; (i) sell, lease, or rent access to or use of the Services, or otherwise transfer any rights to use the Services under this Agreement (including without limitation, on a timeshare or service bureau basis); (j) defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or (k) upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
8.2 Exposure. You acknowledge and agree that by accessing or using the Services, you may be exposed to materials from third parties that you may deem to be offensive, indecent, or otherwise objectionable.
9.1. Although Dan's does not generally monitor user activity occurring in connection with the Services or Content, if Dan's becomes aware of any possible violations by you of any provision of the Agreement, Dan's reserves the right to investigate such violations, and Dan's may, at its sole discretion, terminate immediately your license to use the Services or change, alter or remove Content, in whole or in part, without prior notice to you. If, as a result of such investigation, Dan's believes that criminal activity has occurred, Dan's reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable law, Dan's is entitled to disclose any information or Content, in Dan's possession in connection with your use of the Services to (i) comply with applicable law, legal process or governmental request; (ii) enforce the Agreement; (iii) respond to any claims that any Content violates the Agreement or rights of third parties; (iv) respond to your requests for customer services; or (v) protect the rights, property or personal safety of Dan's, its users or the public, and law enforcement or other government officials, as Dan's in its sole discretion believes to be necessary or appropriate.
9.2. You agree to indemnify and hold Dan's harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys' fees, related to or arising from your Content, the Content of Participants, and your or any Participant's use of the Services.
10.2 Non-U.S. Residents. You agree and acknowledge that your Information collected through the Services or in connection with the Services is collected on behalf of Dan's and may be transferred across national boundaries and stored and processed in any of the countries around the world in which Dan's maintains offices, including the United States.
10.4 Storage and Use of Information. Dan's retains the right to create limits on your use of Content, such as limits on file size, storage space, processing capacity, time frames for retention of Content, and similar limitations as otherwise determined by Dan's in its sole discretion and defined in the Dan's Services. Dan's stores your Information and the Information of Participants in accordance with Dan's then-current storage policies. Dan's may delete, as applicable, all or portions of your Information or Information of Participants upon termination of this Agreement.
10.6 Communications from Dan's. Notwithstanding any communications preferences indicated by you, Dan's may send to you service-related e-mails regarding service maintenance events or modifications to the functionality or delivery of the Services.
10.7 Information of Participants. As between Dan's and you, you shall have sole responsibility for any and all Information of Participants used and submitted in connection with the Services, and Dan's shall have no responsibility in connection thereto. You shall comply with all data protection and privacy laws and rules applicable to Information of Participants. You shall defend, indemnify, and hold harmless Dan's from any claim, suit or proceeding brought against Dan's by a Participant in connection with any acts or omissions with regards to such Information of Participants. E-mails related to the Services are generally sent to Participants by you and not by Dan's. As a result, even though certain Participants may have opted-out from receiving communications from Dan's, such Participants may receive certain Service-related e-mails sent by you. In addition, if applicable, Dan's may send e-mails to Participants in your name as your agent, at your request, and on your behalf. You are solely responsible for such e-mails and the contents thereof.
11. Service Specific Terms. The terms in this Section 11 (Service Specific Terms) apply only to the specific Services, as applicable, set forth below. Notwithstanding anything to the contrary herein, in the event of a conflict between the terms of this Section 11 (Service Specific Terms) and any other terms and conditions of the Agreement, the terms of this Section 11 (Service Specific Terms) shall govern, but only to the extent of such conflict.
11.1 Dan's Software. Dan's may offer from time to time certain software in connection with the Services. Subject to the terms and conditions of the Agreement, Dan's grants to you a non-exclusive, non-transferable, revocable license to install and use the Dan's Software solely in conjunction with the Services. You shall not modify, port, adapt or translate Dan's Software. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Dan's Software. You cannot use the Dan's Software on a timeshare or service bureau basis or host, on a subscription basis or otherwise, the Dan's Software. You acknowledge that Dan's and its licensors own all right, title, and interest in and to the Dan's Software.
12. Feedback. By submitting ideas, suggestions, documents and/or proposals ("Feedback") to Dan's, you acknowledge and agree that (a) you have all rights necessary to provide your Feedback under the terms of this Section 12 (Feedback); (b)Dan's is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) Dan's, in its discretion, shall be entitled to use and disclose such Feedback for any purpose, in any way, in any media worldwide; (d) Dan's may have something similar to the Feedback already under consideration or in development; (e) the Feedback automatically become Dan's property without any obligation to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Dan's under any circumstances.
13.1 Availability of the Services. Dan's uses reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and repairs, or as a result of failure of telecommunications links and equipment that are beyond Dan's control. Dan's will take reasonable steps to minimize such disruption, to the extent it is within Dan's reasonable control.
13.2 Availability of the Support Forums. Dan's may make available from time to time forums on which you may seek help regarding your use of the Services. Such forums may not be available in all languages.
14. DISCLAIMER OF WARRANTIES.
14.1 YOU SHOULD NOT POST CONTENT WITHOUT MAINTAINING A COPY OF SUCH CONTENT IN ANOTHER LOCATION AS THE CONTENT MAY BE ERASED, REMOVED OR CORRUPTED AT ANY TIME, WITH NO LIABILITY TO DAN'S DAN'S MAKES NO COMMITMENT OR WARRANTY THAT ANY SERVICES OR SOFTWARE SIMILAR TO THE SERVICES OR DAN'S SOFTWARE WILL BE OFFERED FOR COMMERCIAL USE. THE SERVICES AND THE DAN'S SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS" "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, DAN'S, ITS AFFILIATES, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES OR THE DAN'S SOFTWARE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DAN'S DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR THE DAN'S SOFTWARE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT DAN'S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DAN'S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.
14.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
15. Limitation of Liability.
15.1 NEITHER DAN'S NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, LLCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICES OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTORY, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DAN'S OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15.2 DAN'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO ONE UNITED STATES DOLLAR ($1). YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. DAN'S SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY REASON.
15.3 THE LIMITATIONS ON LIABILITY IN THIS SECTION 15 (LIMITATIONS OF LIABILITY) ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR LLCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Nothing contained in this Agreement limits Dan's liability to you in the event of death or personal injury resulting from Dan's gross negligence.
16. Governing Law, Disputes and Choice of Forum. The Service is controlled by Dan's from its offices within the state of Rhode Island, United States of America. By accessing and using the Service, you and Dan's agree that all matters relating to this Agreement and your access to, or use of, the Service shall be governed by the statutes and laws of the State of Rhode Island. You and Dan's agree that any dispute relating in any way to Dan's or any or all of our our Sites shall be submitted to confidential arbitration in Rhode Island except that, to the extent that you have in any manner violated or threatened to violate Dan's intellectual property rights, Dan's may seek injunctive or other appropriate relief in any state or federal court in the State of Rhode Island, and you consent to the personal and exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbiter's award shall be binding and may be entered as judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Those who choose to access any one of our Sites from outside the United States do so on their own initiative and are responsible for compliance with local laws. If any provision within the Terms and Conditions is held to be invalid or unenforceable, such provision shall be struck and all remaining provisions shall be enforced.
17. Language. It is the express wish of the Parties that the Agreement and all related documents have been drawn up in English and that the English version of this Agreement shall be the sole version used in interpreting and enforcing this Agreement.
18. Export Control Laws. The export and re-export of certain software and Content are controlled by the United States Export Administration Regulations, and such software and Content may not be exported or re-exported to Cuba, Iran, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, certain software and Content may not be distributed to individuals who are on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You warrant that you are not a national of Cuba, Iran, North Korea, Sudan, Syria or any country to which the United States embargoes goods, and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You further warrant that you will abide by U.S. and other applicable export control laws.
"Dan's," "Dan's Chocolates," the Dan's Chocolates logo, and the purple "d" are registered trademarks of Dan's.
Last Updated: July 5, 2017