Terms and Conditions
Welcome to DunkTank. These terms and conditions govern your access to and use of this website (Site) and various online tools and services that DunkTank makes available to donors, fundraisers, nonprofits, schools, organizations and all others users of the DunkTank service, collectively called Users of the DunkTank service (the Service).
1. RESPONSIBILITIES(a) Your Responsibilities. In accordance with terms and conditions contained herein, by accessing the Service, you agree to (i) be bound by the terms and conditions set forth herein, (ii) comply with the Privacy Policy in the form set forth at http://www.mydunktank.com; (iii) comply with any technical specifications, rules of operation or security procedures set forth by DunkTank from time to time on the Service. From time to time we may revise or modify these terms and conditions by posting the revised terms and conditions through a link on our Site. While we will endeavor to provide notice to you of any changes to the pricing or other financial terms of these terms and conditions, whether or not we provide notice to you, you will be bound by the revised terms and conditions for all subsequent uses of this Service after such modifications have been made. If you do not agree to any of the terms and conditions set forth herein, you may not use this Service.
(b) DunkTank's Responsibilities to Users. In accordance with terms and conditions contained herein, if you are a User, DunkTank will perform, and You authorize DunkTank to provide as Your agent and on Your behalf, the following services (the Services). DunkTank will (i) be paid and process online donations (online Donations) made by individuals or entities (Donors) through the DunkTank Service; (ii) comply with the Privacy Policy in the form set forth at http://www.mydunktank.com, (iii) hold the funds received through online Donations in a non-operating bank account; (iv) collect photos of the fundraising dare or challenge (Dare) with the most votes (Winning Dare) from the individual who initiated the fundraiser (Fundraiser); (v) confirm that the organization or individual designated to receive the donations (Recipient) exists and occupies the address provided to DunkTank by the Fundraiser (vi) remit funds to the Recipient or by check or electronically to the bank account the online Donations, less a service fee of $0.99 + 9% of each online donations collected via the DunkTank service. These fees above are inclusive of all credit card processing and banking fees; these fees are subject to change at any time at the discretion of DunkTank and (vii) send a thank you email and transaction receipt to Donors. DunkTank may also automatically generate and send a series of emails to fundraisers and donors to assist them in more effectively using the DunkTank Service. DunkTank may also make available to (Recipients) online reports identifying, where available, the name, address, email and transaction accounting details of the individuals or entities that have made online Donations to their organization along with amount of the online Donation. DunkTank may cancel and remove any Fundraiser or Dare at any time and for any reason, at its sole discretion, such as for misrepresentations by the Fundraiser and offensive or inappropriate content.
(c) DunkTank User Accounts. DunkTank User Accounts. We make this Service available for use by the general public and Recipients, subject to these terms and conditions. When you use this Service for any purpose, you will be asked for your name, address, email address, and other information to identify yourself or your organization and you will be given the option to create a DunkTank account. In order to access and use the Service aside from making a donation, you must complete the account creation process. Access to and use of password-protected and secure areas is restricted to users who have created an account or subscription. Any attempt to access restricted areas without authorization is prohibited. When you create an account with DunkTank, you will need to choose a password to access the DunkTank Services. You are responsible for maintaining the confidentiality of your password. Keep your password in a secure place and do not allow any unauthorized persons access to your password. If you become aware of any unauthorized use of your password or other security breach, notify DunkTank immediately.
2. PAYMENTS; TAXES. Donors will pay the online Donations by credit card to DunkTank as your Agent. The fees deducted by from the online Donations pursuant to Section 1(b)(iii) will be paid to DunkTank at the time of the transaction. Payment to the designated Recipient pursuant to Section 1(b)(iii) above will be made within 60 days after the completion of the fundraiser. Payment schedules are subject to change at any time at the sole discretion of DunkTank. Nonprofit users and Recipients will be responsible for taxes based on its net income or gross receipts.
3. Donations; Our fees. If you are a Fundraiser or Donor, you are solely responsible for ensuring that you have selected the correct organization to fundraise for or donate to. All donations to Recipients are made as unrestricted gifts and may not be specified for any particular purpose. The amount of donations to the Recipient designated by you are charged on your credit card and paid to, and processed by, DunkTank or its affiliates such Recipient's behalf. All payments are final and non-refundable. Payments are considered Donations and are final and non-refundable irrespective of the outcome of any fundraising contest or competition, including but not limited to whether or not the Donor voted for the Winning Dare or whether or not the Winning Dare is ever completed by the Fundraiser. The donations will be held in a non-operating bank account until such time as DunkTank forwards the donations to the Recipient or payee of funds. DunkTank forwards donations to the Recipient at intervals as determined by DunkTank and the Recipient. It is as frequently as weekly but no less frequently than quarterly. Your donations to the Recipient designated by you will be net of fees as designated in Section 1(b)(iii). This fee structure is subject to change from time to time at the sole discretion of DunkTank. Users agree not to use an invalid or unauthorized credit card in making transactions on the DunkTank site. Once a donation is made, the transaction is final and not subject to dispute unless unauthorized use of the Users payment card is proved. If you become aware of fraudulent use of your card, or if it is lost or stolen, you must notify your card provider in accordance with its reporting rules.
4. INFORMATION ON WEBSITE. Any information; ideas or opinions posted by Users of the DunkTank Service or website do not necessarily reflect our views. We do not assume responsibility for the accuracy of any information, ideas or opinions posted by users and are not liable for any claims, damages or losses resulting from such information, ideas or opinions. If you post any information, materials or other content on our website, you authorize us to use and publish such materials in any manner we choose and without any obligation to compensate you or anyone else. DunkTank may review and remove any information, media, submissions or technology (Content) that, in DunkTank's sole judgment, violates this Agreement, applicable laws, rules or regulations, or is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, any Users of the website or any other persons. DunkTank reserves the right to suspend or terminate User's access to the website or use of the Services for violating this Agreement or applicable laws, rules or regulations. DunkTank may take any action, in its sole discretion, with respect to a User or any Content. When posting any information, materials or content you agree that you will not:
- Harass, defame, intimidate or threaten another user;
- Interfere with another user's rights to privacy;
- Post any material that is defamatory (i.e., disparaging to the reputation of an individual or business);
- Post any material that is obscene, offensive or indecent;
- Post any trademarks, logos, copyrighted material or other intellectual property without the authorization of the owner;
- Operate, conduct, or promote, directly or indirectly, raffles, lotteries or other similar gaming activities, whether for charitable purposes or otherwise;
- Post any materials that may damage the operation of a computer (such as a virus, worm or Trojan horse); or
- Advertise or sell any goods or services.
5. PARTNER SERVICES Our website may provide links to third-party websites or services and may link you automatically to sponsors' or third party's websites or services. We provide such links solely for the convenience of our users. We do not review or endorse, and are not responsible for, any content, advertising, products, services or other materials on or available from such websites or services. You assume full responsibility for your use of third-party websites or services.
6. PROPRIETARY RIGHTS
(a) Trademarked Material. You own all your Marks provided by you in connection with your use of this Service (collectively, "Your Materials"). You hereby grant to DunkTank a nonexclusive, royalty-free transferable, fully paid-up world-wide license to use, copy, display, transmit, publish and distribute Your Materials for the sole purpose of providing the services described in these terms and conditions. Without limiting the generality of the foregoing, You authorize DunkTank to include Your name and logo in a press release, case studies or other announcements and on the DunkTank Site. DunkTank obtains no other right, title or interest in Your Materials except as set forth herein.
(b) DunkTank Material. DunkTank and its licensors shall retain all Intellectual Property Rights in the software, tools, designs, documentation, data and any other material developed or provided by DunkTank pursuant to these terms and conditions, including but not limited to the Services and any data, text, pictures, sound, graphics, logos, marks, symbols, video, visual, oral or other digital material and any other content of any description, provided by DunkTank pursuant hereto.
(c) Limitations on Use of the Site and the Services. You agree that you will not not: (a) assign, transfer, sublicense, lease, or rent the Site, the Services or the Software without DunkTank's prior written permission, which DunkTank may grant or refuse in DunkTank's sole discretion; (b) modify or create any derivative works of the Site, the Service or the software, or any associated documentation, including by combining them with or embedding them in any other software, documentation or materials; (c) reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code for the Site, the Service or the software, or any ideas, algorithms, structures or methodologies underlying the Site, the Service or the software; (d) remove any proprietary notices in or on the Service, the Site, or the software, or on any reports or downloadable files generated through any use of the Service, the Site or the software; (e) take any actions that jeopardize DunkTank's or its Licensors' proprietary rights in and to the Service, the Site or the software. Without limiting any of the other disclaimers of warranty set forth in this Agreement, DunkTank does not provide or make any representation as to the quality or nature of any of the third party services purchased through the Site, or any other representation, warranty or guaranty. Any such undertaking, representation, warranty or guaranty would be furnished solely by the provider of such third party products or services, under the terms agreed to by the provider.
7. TRADEMARKS. The names DunkTank, MyDunkTank.com, DunkTank.com the DunkTank logo and any other product and service names that we may present on the Site from time to time may not be used in connection with any product or service that is not DunkTank's, nor in any manner that is likely to cause confusion, or in any way that may disparage or discredit DunkTank. Other trademarks, service marks or logos that appear on the Site or anywhere in the DunkTank service is rendered, in particular (but not exclusively) those of organizations registered with DunkTank are the property of their respective owners and are likely to be registered trademarks and subject to restrictions as to their use. They must not be used without the express permission of both DunkTank and the trademark owner.
8. COPYRIGHT. All content on this Site is owned by DunkTank, the organizations registered with DunkTank, or other original providers, and is protected by applicable intellectual property and proprietary rights and laws. You may copy such content for your own personal, non-commercial use provided you do not alter it or remove any copyright, trademark, or other proprietary notice. No other use of the Services' content is permitted without the express prior permission of DunkTank, and, where applicable, the copyright holder. Inquiries and permission requests may be sent to info@MyDunkTank.com.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS. Use of this Service is at your sole risk. DunkTank provides the tools, the Site, and the services on an "As Is", "As Available" basis. Each party represents and warrants that it shall perform its obligations in a manner that complies with the applicable federal, state and local laws, regulations, ordinances and codes (including identifying and procuring required registrations, certificates and approvals and posting of any necessary bonds). Without limiting the generality of the foregoing, you further warrant that you own or otherwise have sufficient rights to grant the licenses granted hereunder to Your Materials, have collected Your Materials in compliance with all applicable laws, rules, and regulations (including any infringement or misappropriation of U.S. patent, copyright, trademark or trade secret); and that the use and provision of Your Materials as contemplated herein will not infringe upon any intellectual property, privacy or other rights of any third party. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. To the extent permitted by law, DunkTank expressly disclaims any and all such other warranties. DunkTank makes no representation as to whether all or any portion of the online Donations are tax deductible. DunkTank will have no liability for any claim by any federal or state tax authority with respect to the characterization by You or any User on each of the applicable federal and state tax returns.
10. INDEMNIFICATION.
(a) Indemnity by DunkTank. DunkTank agrees to indemnify, defend and hold harmless You and (if applicable) Your officers, directors, employees, agents, successors and assigns, from any and all Losses arising from any third party claim, action or proceeding alleging that the services hereunder or the DunkTank Materials (i) violate or infringe the Intellectual Property Rights of such third party or (ii) violates any applicable law, rule or regulation.
(b) Your Indemnity. You agree to indemnify, defend and hold harmless DunkTank and its officers, directors, employees, agents, successors and assigns, from any and all Losses arising from any third party claim, action or proceeding alleging (A) that Your Materials or the use thereof by DunkTank or Donors, (i) violates or infringes the Intellectual Property Rights of any third party, (ii) violates any applicable law, rule or regulation, or (iii) constitutes, or contains material that constitutes, libel, defamation or an invasion of privacy or (B) fraud or misrepresentation by You in connection with Your status as a nonprofit entity.
(c) Procedures. A party seeking indemnification hereunder (the "indemnitee") shall promptly notify the other party (the "indemnitor") upon receipt of notice of the commencement or threatened commencement of any action or proceeding that may be subject to indemnification hereunder. The indemnitor shall have sole control over the defense and settlement of such claim; provided that the indemnitee (a) shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim and (b) shall reasonably cooperate with indemnitor in the defense or settlement of such claim.
(d) Remedies. This Section 10 states each party's entire obligation to the other party and such other party's sole remedy with respect to any claim of infringement.
11. LIMITATIONS ON LIABILITY
DunkTank's liability to You for any recoverable losses or damages arising under or in connection with these terms and conditions and your use of this Service shall be limited, to extent applicable, to (i) the actual direct damages incurred by You, in an amount not to exceed the total revenue received by DunkTank resulting from your use of the Service provided hereunder during the most recently preceding 12-month period, or (ii) your discontinuance of any further use of such items or the Service. DunkTank shall not be liable for: (i) damages caused by Your failure to perform Your responsibilities; (ii) claims or demands of third parties (other than those third party claims covered by Section 10); or (iii) any lost or corrupted data, any lost profits, loss of business, loss of use, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages, even if DunkTank has been advised of the possibility of such damages. The foregoing limitations shall not apply to: (i) the payment of settlements, costs, damages and legal fees referred to in Section 11; or (ii) your obligation to pay amounts owed as compensation for the services hereunder. Notwithstanding the foregoing, to the maximum extent permitted by law, DunkTank disclaims liability for any loss or damages, whether direct, indirect, special, incidental, or consequential (even if DunkTank has been advised of the possibility of such damages) arising out of (i) your use of the DunkTank Site and Services or your inability to do so, (ii) your reliance on any content provided on the Service or through the services provided thereunder, and/or (iii) goods and services in any way associated with this Service and the services thereunder. The limitations of liability set forth in this Section 11 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in these terms and conditions.
12. FORCE MAJEURE. Neither party shall be liable for any default or delay in the performance of its obligations hereunder if and to the extent such default or delay is caused by: fire, flood, earthquake, elements of nature or acts of God; riots, civil disorders, rebellions or revolutions in any country; or any other similar cause beyond the reasonable control of such party. In such event the nonperforming party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party continues to use its best efforts to recommence performance or observance without delay.
13. TERM & TERMINATION. Your agreement to abide by these terms and conditions will commence automatically upon your initial use of this Service and continue until the earlier of (i) termination of your rights to use the Service by DunkTank or (ii) your ceasing to use the Service. Sections 2, 4, 6, 7, 10, 11, 12, 14 and 17 shall survive any termination or expiration of these terms and conditions.
14. USER CONDUCT. You must at all times use this Service in a responsible and legal manner. In particular (but not exclusively) you must not do any of the following: misrepresent your identity or your affiliation with any other person or organization; send junk email or spam to people who do not wish to receive mail from you; delete or falsify any attributions, trademarks or designations of source from any website content; conduct, display, promote or forward surveys, contests, raffles, lotteries, pyramid schemes or chain letters; or interfere with or disrupt the service or services or networks connected to the service; collect or store personal data about other users including email addresses. You agree that you will comply with all applicable local, state and federal laws, statutes and regulations regarding use of this website and DunkTank tools and services.
15. INJURY WAIVER. You acknowledge that completion of a Dare exposes you to a possible risk of personal injury, including death and damage to personal property. You hereby release DunkTank and its officers, directors, employees, agents, licensees, subsidiaries, consultants, independent contractors and affiliates from any and all liability from property damage, personal injuries, death or other claims arising from or in connection with the use of the Service including claims that are known and unknown, foreseen and unforeseen, future or contingent. You covenant that you will not now or at any time in the future, directly or indirectly, commence or prosecute any action, suit or other proceeding against DunkTank and its officers, directors, employees, agents, licensees, subsidiaries, consultants, independent contractors and affiliates, arising out of or relating to the actions, causes of action, claims and demands hereby waived, released or discharged by you.
MISCELLANEOUS. These terms and conditions will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its conflicts of laws rules. Any controversy or claim between the parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the "AAA"). The arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within 45 days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empanelled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. Any provision of these terms and conditions that is held to be invalid or unenforceable will be deleted and replaced by a valid and enforceable provision which achieves, as far as possible, the same objectives as the severed provision was intended to achieve. The remaining provisions of these terms and conditions shall continue in full force and effect. Except to the limited extent set forth in Section 1(b) above, neither these terms and conditions, nor any terms contained herein, shall be construed as creating or constituting a partnership, joint venture or agency relationship between the parties. You may not assign, sublicense or otherwise transfer any right or obligation set forth herein without DunkTank's prior written consent. Any purported assignment in violation of the preceding sentence is void and of no effect. These terms and conditions are binding upon the parties' respective successors and permitted assigns. No failure of DunkTank to exercise or enforce any of its rights hereunder will act as a waiver of such rights. Except as otherwise expressly provided herein, all remedies provided for herein shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.