Last Updated: April, 2020
This Membership Agreement (this “Agreement”) is effective between DEKER Corporation, a Delaware stock corporation doing business as FlexPerx (hereinafter, “FlexPerx,” “we,” “us,” “our,” or the “Company”) and the individual whose name was identified in the application for enrollment in the Program submitted to the Company (“you,” “your” or the “Member”).
This Agreement sets forth the terms, conditions, limitations, and requirements (the “Terms”) of and for your enrollment in the Company’s Deductible Payment Plan (the “Program”), including your receipt of Membership Benefits (as defined below) and other services from the Company. Please note that your enrollment in the Program as an Essential Member or Preferred Member (your “Membership”) is also governed by the Company Agreements (as defined below), which are linked below and all of which (as such may be amended from time to time) are incorporated into this Agreement. Upon submitting your application for enrollment in the Program as a Member (your “Membership Application”) to the Company, you accept these Terms and this Agreement.
UPDATES AND CHANGES. We may update or change the Terms and this Agreement from time to time by notifying you of such update or changes by any reasonable means, including by posting revised Terms or the revised Membership Agreement on this site or the Membership Account or by sending you an electronic notice of the revised Terms or Membership Agreement. Any revised Terms or revised Membership Agreement will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms or revised Membership Agreement on this site or on the Membership Account, or by otherwise notifying you of the revised Terms or revised Membership Agreement. By continuing to use the Membership Account or continuing your membership after we post the revised Terms or revised Membership Agreement on this site or the Membership Account, or by otherwise notifying you of any changes, you accepted the revised Terms or revised Membership Agreement. The “Last Updated” legend above indicates when the Terms and Membership Agreement were last changed.
IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION XVII BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND DEKER ARE EACH GIVING UP OUR RIGHTS TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND.
WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: While there are important points throughout these Terms, please note the warranty disclaimers and limitations on our liability, as explained in Section XVI below.
|THIS AGREEMENT IS NOT A POLICY OR CONTRACT OF INSURANCE|
- Defined Terms: When used in this Agreement, all capitalized terms shall have the meaning set forth herein. All other capitalized terms used in this Agreement, but not defined in this Section, have the meaning ascribed to such terms, in each case, as the context requires:
Agreement: This Membership Agreement, as from time to time amended.
Applicable Insurance Policy: means, as the context requires, your Vehicle Insurance Policy or Dwelling Insurance Policy.
Company, us, or we: means DEKER Corporation, a Delaware stock corporation.
Covered Damage: Physical damage or impairment to your Vehicle or the roof of your Covered Dwelling that the Insurance Company determines to be covered under the Applicable Insurance Policy and for which the Insurance Company agrees to pay a portion, but not all of, the cost to repair your Vehicle or the roof of your Covered Dwelling. “Covered Damage” does not include replacement of your Vehicle or roof of your Covered Dwelling if the Insurance Company determines the damage to your Vehicle, your Covered Dwelling, or the roof of Your Covered Dwelling to be a total loss, will otherwise not pay for the repair of your Vehicle or the roof of Covered Dwelling, or elects to pay you the covered replacement cost for your Vehicle, Covered Dwelling or roof of your Covered Dwelling.
Covered Dwelling: means your primary residence that is covered by a Dwelling Insurance Policy.
Dwelling Insurance Policy: a homeowners’ or similar insurance policy covering the roof or similar exterior component (other than siding) of your Covered Dwelling against damage or impairment caused by wind and/or hail.
Eligible Service Provider: means a business that provides repair services with respect to Covered Damages, has entered into an agreement with us to participate in the Program, and that has been authorized by the Insurance Company to undertake the services and work to repair the Covered Damage.
Insurance Company: The insurance company issuing the Vehicle Insurance Policy or Dwelling Insurance Policy to you, which provides coverage for Covered Damage to your Vehicle or Covered Dwelling, respectively.
Insurance Deductible: The amount identified in the Applicable Insurance Policy that you are responsible for paying for any Covered Damage.
Vehicle: The automobile identified in your Membership Application by make, model, year, and VIN.
Vehicle Insurance Policy: The policy of automobile insurance you have purchased that provides coverage for physical damage to your Vehicle.
- Membership, Generally: In exchange for your timely payment of the membership fee to the Company (the “Membership Fee”), the Company agrees to provide you the benefits and services (collectively, the “Membership Benefits”), as more fully described below. The Company’s obligation to provide, and your right to receive, the Membership Benefits is at all times subject to the exclusions and limitations set forth in this Agreement and your timely payment of the Membership Fee.
- Membership Benefits: Generally speaking, but subject at all times to the exclusions and other limitations contained in this Agreement (including your timely payment of all Membership Fees), you will be eligible to receive Membership Benefits if each of the following is true and occurs (an “Eligible Event”):
- Your Vehicle or the roof of your Covered Dwelling is damaged or similarly impaired and is capable of being repaired;
- You submit a claim for the damage or impairment under the Applicable Insurance Policy;
- The Insurance Company determines the damage or impairment to your Vehicle or your Covered Dwelling is Covered Damage under the Applicable Insurance Policy;
- You are obligated to pay the Insurance Deductible under the Applicable Insurance Policy;
- Your Vehicle or Covered Dwelling is to be repaired by an Eligible Service Provider; and
- The Insurance Company has authorized the Eligible Service Provider to make repairs to your Vehicle or Covered Dwelling for Covered Damage.
If an Eligible Event occurs (i.e. each of the above conditions occurs), and provided no exclusions or limitations apply), you would be eligible for the following Membership Benefits solely with respect to that particular Eligible Event:
- If you are a Preferred Member:
- The Company would pay a certain portion of your Insurance Deductible directly to the Eligible Service Provider on your behalf, not to exceed $50 per Term or Renewal Term (a “Reduction Payment”) for the Eligible Event. The amount of the Reduction Payment paid by the Company toward your Insurance Deductible will depend on several factors, including, but not limited to, Membership Tier, the aggregate amount of Membership Fee payments made by you as of the date of the Eligible Event, the duration of your Membership at the time Membership Benefits are requested, and the amount of your Insurance Deductible.
- The Eligible Service Provider will agree to accept payment of the remaining amount of your Insurance Deductible (that is, the Insurance Deductible less the Reduction Payment, if any) in installment payments over a period not exceeding 12 months. You must enter into an installment sales contract (“Installment Sales Contract”) with the Eligible Service Provider in order to pay the remaining amount of your Insurance Deductible in installments. You consent to the transfer and assignment of the Installment Sales Contract to us. Upon the transfer and assignment of the Installment Sales Contract to us, you must make all payments under the Installment Sales Contract to us. Alternatively, we may enter into a separate contractual arrangement with your Eligible Service Provider under which we will agree to collect payments you make under the Installment Sales Contract and remit such payments to your Eligible Service Provider. Notwithstanding our contractual arrangement to collect payments for your Eligible Service Provider, unless your Installment Sales Contract is assigned to us, your obligation to make payments under the Installment Sales Contract is and will remain owed to your Eligible Service Provider.
- If you are an Essential Member:
- As an Essential Member, upon experiencing an Eligible Event, you will be eligible to enter into an Installment Sales Contract with your Eligible Service Provider. This will enable you to pay the full amount of your Insurance Deductible in monthly installments over a specified period of time, not to exceed 12 months.
- As an Essential Member, you will not be entitled to receive any contribution or Reduction Payment from us toward the payment of your Insurance Deductible owed to the Eligible Service Provider.
- Limitations: Notwithstanding anything in this Agreement to the contrary, in no event will the Reduction Payment paid on behalf of a Preferred Member for an Eligible Event exceed the aggregate amount of such Preferred Member’s Membership Fee payments made to the Company as of the date of the Eligible Event. The date of the Eligible Event is the date on which the last of the conditions set forth above for an Eligible Event is completed or satisfied.
Any Reduction Payment for which you may be eligible is based, in part, on the Membership Fees you have paid and represents an application of all or a portion of such Membership Fees to payment of your Insurance Deductible for an Eligible Event. If you have more than one Eligible Event for which you request Membership Benefits, your eligibility for a Reduction Payment for any Eligible Event will be based only on the Membership Payments you make after the immediately preceding Eligible Event for which you request Membership Benefits.
- Request for Membership Benefits: In the event of a potential Eligible Event, in order to obtain Membership Benefits for the Eligible Event, you must submit a request for Membership Benefits (a “Request for Benefits”) to the Company through your Membership Account on the Company’s mobile application or the Company’s website, located at https://www.flexperx.com/, promptly after the incident resulting in Covered Damage and before any repairs authorized by the Insurance Company are commenced. Navigate to your vehicle details screen to locate the form to submit the request.
WE MAY DENY YOUR REQUEST FOR MEMBERSHIP BENEFITS IF YOU FAIL TO TIMELY NOTIFY US OF A POTENTIAL ELIGIBLE EVENT.
- Membership Fee, Payments, Term: There are two options for payment of the Membership Fee: monthly or annually. The annual payment option will be prorated based on a January 1 start date. The initial term of your Membership (the “Initial Membership Term”) will be dictated by the payment option you select and submit in your Membership Application. If you elect to pay the Membership Fee monthly, your Initial Membership Term will be one month and your selected payment method will be charged the Membership Fee for that single month at the rate set forth in your Membership Application. If you elect to pay the Membership Fee annually, your Initial Membership Term will be the number of months remaining in the present calendar year and your selected payment method will be charged the aggregate Membership Fee owed for such term (as such may be discounted) at the monthly rate set forth in your Membership Application. If your Membership Application is approved by the Company, your preferred payment method will be charged within 2-5 days after you submit your Membership Application.
- Membership Renewal: Upon the expiration of your Initial Membership Term, your Membership will automatically renew (each such renewal, a “Renewal Term” and together with the Initial Membership Term, the “Membership Term”)) on the same terms and under the same conditions set forth in this Agreement and your Membership Application (as described in Section V, above), including the Membership Fee payment schedule (such, a “Renewal Fee”). Your selected payment method will be charged the Renewal Fee accordingly. An individual may only have one Membership. In the event the Company determines not to renew your Membership, or if the Company determines to renew your Membership on terms different than those in your Membership Application (such as a change to your Membership Fee), the Company will provide notice to you of such termination or modified renewal no less than 15 days prior to the expiration of your current Membership Term. If the Company does not give you at least 15 days’ prior notice of such cancellation or modification, your Membership will be renewed on the same terms. If you ask to cancel your Membership in accordance with Section VII, below, your Membership will expire without renewal at the end of your current Membership Term, but no Membership Fee payments will be refunded to you.
- Membership Cancellation. The Company reserves the right to non-renew your Membership upon the expiration of any Membership Term for any reason or no reason. The Company reserves the right the cancel your Membership during the Membership Term upon the occurrence of any of the following:
- The Applicable Insurance Policy lapses for any reason;
- Non-payment of the Membership Fee;
- Any material misrepresentation in your Membership Application or any other submission of information to the Company, including any request for Membership Benefits;
- Any material breach of your duties under this Agreement, the Terms, or any other applicable agreement;
- Any abuse of Membership Benefits, including any instance of verbally or physically abusive behavior directed toward another Member, the Company or its employees, or any Eligible Service Provider; or
- The Insurance Deductible on your Applicable Insurance Policy changes and you fail to notify us in writing within ten (10) days after such change.
Accordingly, the Company reserves the right to terminate or cancel a Membership at its discretion. You understand and agree that, in the event the Company terminates or cancels your Membership, you will be entitled only to a refund of the most recent Membership Fee payment less the amount of the Membership Fee attributed to the month of termination and each month prior to the month of termination that elapsed during the current Membership Term. Furthermore, you acknowledge and agree that any Membership Fee payments made to the Company during any previous Membership Term will be deemed forfeited, notwithstanding the fact that you never requested or received Membership Benefits.
You may cancel your Membership at any time by providing us written notice, but upon cancellation, all Membership Fee payments made to the Company during any previous Membership Term will be deemed forfeited, notwithstanding the fact that you never requested or received Membership Benefits. The Company will not refund any of your Membership Fees if you cancel your membership.
- Electronic Communications/Signature: When you use the Membership Account, or send e-mails, text messages, and other communications from your desktop or mobile device to the Company, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site, the mobile app, or through the other Company services, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. As part of the Company’s commitment to reduce the use of paper, the Company has endeavored to conduct its business in a paperless environment. In furtherance of this endeavor, you agree that any and all communications between you and the Company may be sent via electronic-only means. For more information on the terms of electronic communications, please see the Company’s Service E-Sign and UETA Disclosure and Consent Agreement.
- Your Membership Account: In order to receive Membership Benefits, you will be required to register and maintain your own Membership Account on the Company’s website and/or the Company’s mobile app (the “Membership Account”), and you will be required to be logged-in to the Membership Account and have a valid payment method associated with it. If there is a problem charging your selected payment method, you agree that the Company may charge any other valid payment method associated with your Membership Account. You understand and agree that you are responsible for maintaining the confidentiality of your Membership Account, including by restricting access to the password used to access your Membership Account, and you agree to accept responsibility for all activities that occur under your Membership Account or password associated therewith. The Company reserves the right to terminate your Membership Account, to terminate your right to use the Membership Account, and to remove or edit content contained therein. This Section XII and your use of the Membership Account and the Company’s website are all subject to the Company Agreements.
- Sanctions and Export Policy: You may not use any Company service, including the Membership Account if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Membership Account. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
- Other Businesses: The Company may provide links in your Membership Account to the sites of affiliated companies and or certain other businesses. If you purchase any of the products or services offered by any of these businesses or individuals, you are purchasing directly from those third parties and not from the Company. We are not responsible for examining or evaluating, and we do not warrant, the offerings of any of these businesses or individuals (including the content of their sites). The Company does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
- Disclaimer of Warranties and Limitation of Liabilities: THE MEMBERSHIP ACCOUNT AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE MEMBERSHIP ACCOUNT AND THE COMPANY AGREEMENTS ARE PROVIDED BY OR ON BEHALF OF THE COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE MEMBERSHIP ACCOUNT, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE MEMBERSHIP ACCOUNT OR THE COMPANY AGREEMENTS, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE MEMBERSHIP ACCOUNT OR OTHER COMPANY SERVICES UNDER THE COMPANY AGREEMENTS IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE MEMBERSHIP ACCOUNT OR ANY OTHER SERVICES UNDER THE COMPANY AGREEMENTS, INCLUDING INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE MEMBERSHIP ACCOUNT, THE COMPANY’S OR ITS AGENTS’ SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM OR ON BEHALF OF THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE MEMBERSHIP ACCOUNT OR ANY OTHER SERVICE PROVIDED BY THE COMPANY, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE MEMBERSHIP ACCOUNT, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
THE COMPANY IS NOT RESPONSIBLE FOR ANY WORK OR REPAIRS UNDERTAKEN OR PERFORMED BY AN ELIGIBLE SERVICE PROVIDER, AND MAKES NO REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO ANY ELIGIBLE SERVICE PROVIDER OR THE WORK OR SERVICES PROVIDED BY ANY ELIGIBLE SERVICE PROVIDER.
- Disputes; Arbitration: Any dispute or claim relating in any way to or arising out of this Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us through our registered agent at the following address:
1905 Harney Street Ste. 811
Omaha, Nebraska 68102
The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, the Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- Applicable law: By submitting the Membership Application, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Nebraska, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and the Company.
- In the event of any conflict between these Terms and this Membership Agreement and any other Company or third-party terms applicable to any portion of Company Software, such as open-source license terms, such other terms will control as to that portion of the Company Software and to the extent of the conflict.
- How to Serve a Subpoena or other Legal Process: The Company accepts service of subpoenas or other legal process only through the Company’s registered agent identified in Section XVII, above.