Effective Date: April 23, 2018

By installing or using the American Dairy Queen Corporation (“we” or “us”) mobile application (the “app”), you agree to be bound to these Terms of Use, and consent to the collection, processing and use of your information as described in our Privacy Statement[a]. If you do not agree to the Terms of Use or the Privacy Statement, do not install (or immediately uninstall) the app. We may change the Terms of Use or Privacy Statement at any time and your continued use of the app is your agreement to any changes. The Terms of Use and the Privacy Statement also govern any updates or new versions of the app, unless separate terms accompany updates or new versions, in which case the separate terms apply. These Terms of Use contain disclaimers and other provisions that limit our liability to you.

These terms include an arbitration provision that governs any disputes between you and us. Unless you opt out as described below, this provision will eliminate your right to a trial by jury and substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings.

Limited Markets and Locations

This app is applicable only to participating DQ® locations. In addition, while you may be able to view and download the app, certain functionality and features of the app may only be available at select DQ locations.

Most DQ locations are independently owned and operated franchises, and we do not own or operate these locations. Information about a particular location may not apply to other locations, such as a reward or coupon that is only for use at that location. If you have questions about specific offers, promotions, or products for a particular location, please contact that location.

Age Requirements

You must be at least 13 years old to use the app. If you are 13 or older but under the age of majority in your state, you may only download and use the app under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use and the Privacy Statement.

Rewards Program

You will earn rewards for purchases of at least $0.10 that are made at DQ locations participating in the rewards program. One rewards point is awarded for each $0.10 purchase, rounded to the nearest 10. For example, a purchase of $2.93 would earn 29 reward points, and a purchase of $2.95 would earn 30 reward points. There are two tiers of redemption rewards; the first tier begins at 250 points, and the second tier begins at 500 points. To see the rewards available in each tier, visit the “Deals & Rewards” section of the app. Points expire 365 days after they are first earned, so that points earned on June 2nd would expire on June 1st of the following year.

License

Subject to these Terms of Use and any other applicable terms (for example, the marketplace from which you download the app), we grant you a personal, limited, non-exclusive, non-transferable and revocable license to use the app for personal use on one mobile device. We own or license all content associated with the app, which is protected by copyright, trademark and other intellectual property laws. Although we make the app freely accessible, we are not giving up rights to the content of the app, and no rights are transferred to you when you use the app. You may not frame any content from the app or incorporate it into another website, service or app.

Other than the limited license granted by these Terms of Use, you have no other right, title or interest in the app. All rights not expressly granted to you are fully reserved by us, and no rights are conferred by estoppel, operation of law, implication or otherwise. You must not: (1) modify, port, translate, adapt, enhance or create any derivative works of or from the app; (2) decompile, disassemble, reverse engineer, attempt to reconstruct, identify or derive any source code, underlying user interface techniques or algorithms from the app or disclose or decrypt any of the foregoing; (3) knowingly take any action that would cause the app or any component of the app to enter the public domain; (4) resell, transfer or distribute the app or any content; (5) remove, alter or obscure any proprietary notice (including a copyright or trademark notice); (6) install, use or permit the app to reside on more than one mobile device at a time, other than by separate downloads of the app in accordance with these Terms of Use; or (7) use the app for any unlawful purpose.

Mobile Payment

If you elect to use your mobile device to purchase DQ products using a credit card or stored value account (“Mobile Payment”), Mobile Payment will be managed by third party payment processors and we will not receive any payment information. We and our third party vendors will not charge you any fees for use of Mobile Payment. Mobile Payment is only accepted at certain participating locations. Any fees for using Mobile Payment are your responsibility. We reserve the right at any time to discontinue Mobile Payment, change the types of Mobile Payment accepted, or change the number or location of stores accepting Mobile Payment. 

App Communications

Please review the Privacy Statement carefully to understand how we collect, use and disclose the personally identifiable information you provide to us. If you sign up for an account using the app, you are automatically opted in to receive promotional email communications from us. You may opt out of these promotional emails during the registration process or by adjusting your profile settings in the app. Similarly, upon downloading the app you are provided the option to opt in to receive push notifications on your mobile device. This may include promotional communications, offers, and system messages pushed to the mobile device. You may at any time opt out of receiving some or all of these push notifications by switching the app settings to “off.” In-app messages will automatically be displayed via the app’s display titles, sent to you via the app’s inbox, or both. If you do not wish to see or receive in-app messages, you should stop using the app.

Use of the App

In order to use certain functions of the app, you will need to register for an account. You are responsible for maintaining and promptly updating your account information and maintaining the security of your account by not sharing your password with others and restricting access to your account and your mobile device. You take responsibility for all activities that occur under your account and accept all risks of unauthorized access. You represent that any information that you provide is accurate and complete. You agree that you will not use the app in any way that: (1) is unlawful, fraudulent, or deceptive; (2) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party, including intellectual property or publicity rights; (3) attempts to interfere with, gain unauthorized access to, or damage any computer network, server, system, software or user accounts; (4) uses any manual or automated means, including agents, robots, scripts, or spiders to monitor or copy the app or any content; (5) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; or (6) otherwise violates these Terms of Use. Use of the app while driving is specifically prohibited under these Terms of Use.

If we believe you have violated the Terms of Use, then we have the right to: (1) terminate any license to the app, or suspend or terminate your access to any app functionality, without further notice to you; or (2) assert legal action with respect to use of the app.

Indemnification

You agree to defend and indemnify us and our subsidiaries, affiliates, franchisees, officers, directors, employees, and agents, as well as any third party vendors, licensors or providers of content or software for the app (collectively the “App-Related Parties”), from any claim, demand, or damage, including reasonable attorneys' fees, arising out of or related to your breach of these Terms of Use or your use or misuse of the app or any content in the app. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate in asserting any available defenses.

Product and Nutritional Information

Any product or nutritional information provided through the app is for informational purposes only, and assumes compliance by locations with ingredient requirements and standardized preparation procedures. Seasonal and manufacturer variations may also affect nutrition information. Nutrition information is based on analysis by R-TECH and Commercial Testing Laboratory, Inc., and representative values from manufacturers, Genesis R&D® SQL and the USDA. Product or nutritional information may not apply to all DQ locations.

Disclaimers; No Warranties

THE APP IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE AND THE APP-RELATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY THAT THE APP WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR MOBILE DEVICE OR ANY OTHER HARDWARE OR SOFTWARE INSTALLED ON YOUR MOBILE DEVICE. WE AND THE APP-RELATED PARTIES FURTHER DISCLAIM ANY WARRANTY THAT THE APP WILL BE ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE APP OR APP CONTENT IS CORRECT, ACCURATE, ADEQUATE OR RELIABLE FOR ANY PURPOSE.

Liability Limitations and Disclaimers

You assume all responsibility and risk for your use of the app. There may be delays, omissions, inaccuracies, viruses, technical mistakes, or other problems with the app and we have no obligation to maintain or support the app. You understand that you are solely responsible for any damage to your mobile device or computer system or loss of data that results from any materials or data downloaded from or otherwise provided by the app. The app may contain hyperlinks to websites operated by third parties and we are not responsible for the content of and do not endorse those sites.

SUBJECT TO APPLICABLE LAW, INCLUDING WITH RESPECT TO NON-WAIVABLE STATUTORY RIGHTS UNDER NEW JERSEY LAW, NEITHER WE NOR THE APP-RELATED PARTIES ARE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT OR OTHER DAMAGES OR INJURY RESULTING FROM YOUR USE OF THIS APP, INCLUDING ANY DAMAGES CAUSED BY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE, OR ASSOCIATED WITH LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS, LOSS OF SAVINGS OR LOSS OF GOODWILL THAT RESULT FROM THE USE OR INABILITY TO USE THIS APP OR ANYTHING DOWNLOADED FROM OR THROUGH THIS APP.

If you live in a jurisdiction other than New Jersey, the above limitations and exclusions apply to the extent permitted by law.

Arbitration

This section affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of jury trial and class actions. Arbitration does not use a judge or a jury. Arbitration is final and binding and subject to only very limited review by a court. Please review this section carefully.

This provision encompasses all disputes or claims arising out of or relating to these Terms of Use, your use of the app, and your relationship with us, including any of our subsidiary, parent or affiliate companies. Any dispute will be resolved by binding arbitration, except that either you or us may take claims to small claims court if they qualify for hearing by such a court.

Opt-Out. Notwithstanding the above, you may choose to pursue your claim in court if you opt out of this arbitration provision within thirty days from the earliest date you downloaded, installed, accessed or used the app (the “Deadline”). You may opt out by sending us a written notice with your first name, last name, and the email address you used to sign up for the app to the following address:

American Dairy Queen Corporation
Attn: Legal Department – Mobile App Arbitration Opt-Out
P.O. Box 390286
Minneapolis, MN 55439

Any opt-out not received within three days of the Deadline will not be valid and you must pursue your claim in arbitration or small claims court.

Arbitration Procedures. For all disputes (whether pursued in court or by arbitration), you must first send a written description of your claim to our Fan Relations department (using the contact information below) to allow us an opportunity to resolve the dispute. You and we agree to negotiate your claim in good faith. If the dispute is not resolved within sixty days, you may request arbitration.

The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules as modified by these terms. The AAA Rules and information about arbitration and fees are available online at www.adr.org. These terms evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. The arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your claim. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content, or result of any arbitration except as required by law or for purposes of enforcement of the award. Judgment on any award may be entered in any court having proper jurisdiction.

Jury and Class Action Waivers. You and we agree that any proceeding, whether in court or in arbitration, will be conducted only on an individual basis and not in a class, consolidated, or representative action. If a court or arbitrator determines that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If you exercise the Opt-Out as specified above, this class action waiver provision will not apply to you. Neither you nor any other app user can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the Opt-Out process described above. If for any reason a claim proceeds in court rather than through arbitration, you hereby waive any right to a jury trial.

Miscellaneous

If you Opt-Out of arbitration, or if the arbitration agreement is ever deemed unenforceable or void, you consent to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota, for all disputes arising out of or relating to these Terms of Use or the use of this app. These Terms of Use shall be construed in accordance with the laws of the State of Minnesota, regardless of any conflicts of law principles. If any provision of these Terms of Use is determined to be invalid under any applicable statute or rule of law, such provision is to that extent to be deemed omitted, and the balance of the Terms of Use shall remain enforceable. Before seeking legal recourse for any harm you believe you have suffered arising from or related to your use of this app, you agree to inform us in writing and to give us thirty days to cure the harm before initiating any action. You must initiate any cause of action within one year after the claim has arisen, or you will be barred from pursuing any cause of action. California residents are entitled to the following consumer rights information. American Dairy Queen Corporation is the provider of the app. You may file a complaint regarding the app, or to receive further information regarding use of the app, send a letter to us at the address below or via email (write “California Resident Request” in the subject line). California residents may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or at 800-952-5210.

Contact

Any questions, complaints, or claims regarding the app should be directed to:

American Dairy Queen Corporation
Attn: Fan Relations
P.O. Box 390286
Minneapolis, MN 55439


Email: fanrelations@idq.com
Phone: 1-866-793-7582