DoubleBeam Cloud POS
Consumer Terms of Service
BEFORE YOU ACCEPT THESE CONSUMER TERMS OF SERVICE (“TERMS OF SERVICE” OR “AGREEMENT”) OR USING THE SERVICE (AS DEFINED BELOW), CAREFULLY READ THESE TERMS OF SERVICE. BY ACCEPTING THESE TERMS OF SERVICE OR USING THE SERVICE, YOU ARE REPRESENTING THAT (I) YOU ARE OF THE LEGAL AGE TO FORM A LEGALLY BINDING CONTRACT BETWEEN DOUBLEBEAM, INC. (“DOUBLEBEAM) AND YOU IN THE JURISDICTION WHERE YOU PERMANENTLY RESIDE; (II) YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; AND (III) YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS BINDING LEGAL AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR OTHER LEGAL ENTITY TO THE AGREEMENT, AND THAT BY YOUR USING THE SERVICES ON BEHALF OF SUCH PERSON, COMPANY OR OTHER LEGAL ENTITY, SUCH PERSON, COMPANY OR OTHER LEGAL ENTITY IS HEREBY BOUND. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, DO NOT ACCEPT THESE TERMS OF SERVICE OR USE THE SERVICE.
These Terms of Service are an ongoing contract between you and DoubleBeam and apply to your use of the Service as made available in the United States. You agree not to use or attempt to use the Service from outside of the United States. Different terms, conditions and limitations may apply to the Service available in other jurisdictions.
Changes to Terms of Service
DoubleBeam reserves the right, from time to time, with or without notice, to change these Terms of Service in its sole and absolute discretion. All changes to these Terms of Service will be effective and binding upon you once they are displayed or posted in accordance with this paragraph. You acknowledge and agree that it is your responsibility to ensure that you are aware of the most current Terms of Service. If any substantial changes are made to these Terms of Service, DoubleBeam will notify you by displaying the new Terms of Service within the Application or by posting them on the Website (as defined below). The most current version of these Terms of Service can be viewed at all times by visiting http://www.DoubleBeam.com/consumer-terms-of-use/. The most current version of these Terms of Service will supersede all previous versions. If you do not agree to any change to these Terms of Service, you must immediately cease using the Service and delete the Application from your device(s).
Description of Service
The “Service” is comprised of a mobile application (“Application”) that provides, among other things, a platform for you to browse, order and pay for certain goods and services from participating third party merchants through a supported mobile device.
DoubleBeam is not an issuer, financial institution or money transmission business. DoubleBeam provides a platform to obtain and facilitate payment for third party goods and services, but is not in the business of offering the goods and services itself, and does not have any control over the merchants.
Eligibility & Registration
In order to use the Service, you must first create and register an account (“Account”) via the Application. By registering an Account, you represent and warrant that you are at least eighteen (18) years of age and that all required information submitted by you through the Application is current, complete and accurate. As part of the registration process, you will be required to: (1) provide your name, phone number and date of birth; and (2) establish a PIN for your Account. To complete orders through the Service, you will also be required to submit one or more valid electronic payment cards to be used in processing payment transactions.
No persons under the age of 18 may access or use the Solution except under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult must be the user and must be responsible for any and all activities.
You are solely responsible for maintaining the confidentiality and security of your Account PIN and for all activities that occur on or through your Account, and you agree to immediately notify DoubleBeam if you suspect any unauthorized use of your Account or access to your PIN. DoubleBeam shall not be responsible for any losses arising out of the unauthorized use of your Account.
Further, you are responsible for providing and maintaining current, complete and accurate information for so long as you continue to use the Service. DoubleBeam may, from time to time, require you to provide additional information in evaluating your registration, Account and eligibility to continue using the Service. DoubleBeam reserves the right, in its sole and absolute discretion, to reject, suspend or terminate your Account (with or without notice), except as otherwise required by Applicable Laws (as defined below).
Processing Payments for the Goods and Services you Purchase through the Service
Each purchase you make through the Service is a binding commitment to purchase the goods or services you selected. You agree to pay the applicable charges for any orders you place through the Service. DoubleBeam’s participating third party merchants reserve the right to change the amounts they charge for goods and services at any time. All charges and amounts collected or paid through the Service are denominated in U.S. dollars.
You agree that DoubleBeam is not responsible for the goods and/or services purchased by you through the Service, as well as the accompanying terms and conditions. DoubleBeam does not sponsor or endorse, and shall not be responsible for: (a) listings (or other related information regarding items for sale) posted by participating third party merchants (“Merchant Listings”); (b) any goods or services featured in such Merchant Listings (including without limitation the quality, timeliness or nature of such goods or services); or (c) any sites linked from such Merchant Listings. DoubleBeam expressly disclaims any and all liability for errors or omissions in any Merchant Listing.
Your Use of the Service
Your use of the Service is for your sole, personal use. The Service is limited to facilitating payments in connection with your purchase of goods and services through the Service in certain locations in the United States, and may not be used to send cash advances, cash equivalents, or otherwise transfer money between you and a third party.
By accessing the Service (including via the Application), you agree to use the Service (including, without limitation, all features and functionalities associated therewith, the Application and software associated therewith) in accordance with these Terms of Service and all applicable laws, statutes, rules and regulations (“Applicable Laws”). In addition, you agree that you will: (1) use the Service only for lawful purposes; (2) not upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment associated with the Service; (3) not impersonate any person or otherwise misrepresent your affiliation with any other person, including, without limitation, any person affiliated with the Service; (4) not interfere with the servers or networks connected to any portions of the Service or violate any of the procedures, policies or regulations of networks connected to the Service; and (5) not impair or harm the Service (including, without limitation, the Application) in any way whatsoever.
You may enable certain features and links to certain third party websites through the Service that are not controlled by, or affiliated with, DoubleBeam. The inclusion of such links does not imply any approval, endorsement or recommendation by DoubleBeam. You agree that DoubleBeam shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, goods or services, or other materials on or available from such third party websites.
Communications with Other Users and Merchants
As part of the Service, you may enable communications with other users of the Service and/or opt-in to receiving messages regarding specials and promotions from your selected merchants. You can disable these features at any time. If you choose to enable these features, you release DoubleBeam from all liability relating to your connections and relationships with other users of the Service. You understand that DoubleBeam does not, in any way, screen users or attempt to verify their statements. DoubleBeam expressly disclaims all liability for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the Service, including, without limitation, bodily injury, emotional distress, and any damages resulting in any way from communications or meetings with users or persons you may otherwise meet through the Service.
You are solely responsible for your access to and use of the Service and any and all text, photos, graphics, images, audio, video, location data, Account information, and all other forms of data or communication (collectively, “Content”) that you submit or transmit to, through, or in connection with the Service, such as reviews, messages, and information that you publicly display in your Account profile. You represent and warrant that your Content shall not: (i) be false, inaccurate or misleading; (ii) be obscene, indecent, pornographic, defamatory, libelous, threatening, harassing, abusive or inflammatory; (iii) be fraudulent or involve the sale of illegal, counterfeit or stolen goods; (iv) infringe upon or misappropriate any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights; (v) violate the terms of this Agreement; (vi) violate any Applicable Laws; (vii) contain or transmit any corrupted data or code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (viii) expose DoubleBeam to, or appear to create, any kind of liability for DoubleBeam. You assume all risks associated with your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in your Content that makes you personally identifiable. You agree to allow DoubleBeam to store or re-format your Content on DoubleBeam or other third party servers and/or display your Content in connection with your use of the Service in any way as DoubleBeam chooses. DoubleBeam reserves the right to remove any user (with or without notice) should DoubleBeam determine, in its sole discretion, that the Service has been compromised or in any way used inappropriately. You agree to pay for all royalties, fees and any other monies owing any person by reason of your Content. By providing your Content to DoubleBeam, you grant to DoubleBeam a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to use, reproduce, modify, adapt, publish, distribute, publicly display and publicly perform your Content in connection with your use of the Service and for promoting the Solution. DoubleBeam reserves the right, in its sole and absolute discretion, to remove, modify or disable any Content posted on or through the Service at any time (with or without notice).
Communications from DoubleBeam
You agree and consent to receive electronically all communications, agreements, documents, notices, statements and disclosures (collectively, “Communications“) that DoubleBeam provides in connection with your Account and your use of the Service. Communications will be delivered by (a) posting a notice or message through the Application; or (b) sending electronic mail to the email address listed in your Account profile. All Communications will be considered received by you within 24 hours of the time such Communication is posted to the Application or emailed to you. You also agree that your electronic signature on any agreements or documents in connection with the Service has the same effect as a physical signature.
By using the Service, you consent to DoubleBeam collecting and sharing information about you, your location (received through your mobile device if such feature has been enabled), and your use of the Service with DoubleBeam’s third party service providers and partners. DoubleBeam may also collect anonymized, aggregate data in connection with your use of the Service for purposes of marketing, data analytics, and enhancing and optimizing the Service.
Limited License Grant. Subject to your compliance with these Terms of Service, DoubleBeam grants you a non-exclusive, limited, personal, non-transferable, non-sublicensable, revocable license to (i) download and use the Application (in object code form only) on one or more supported mobile devices solely in connection with your personal and non-commercial use of the Service; (ii) access and use the Application solely in connection with your personal and non-commercial use of the Service; and (iii) view Merchant Listings. This license grant includes the Application and all updates, upgrades, enhancements, modifications, new versions and replacement Application. The Application and Merchant Listings may vary by device and medium, and functionalities may also vary by device and medium.
Restrictions. As a condition of the limited license granted to you hereunder, except as and only to the extent expressly permitted in these Terms of Service or by Applicable Laws that cannot be waived by you in these Terms of Service, you may NOT: (i) publish, display, disclose, rent, lease, loan, distribute, transmit, broadcast or otherwise exploit the Service, the Application, the Merchant Listings, or any part thereof; (ii) modify or create derivative works based on the Service, the Application, the Merchant Listings, or any part thereof; (iii) copy, decompile, reverse engineer, disassemble, translate, adapt or otherwise reduce the Application to human readable form; (iv) attempt to create the source code from the object code of the Application; (v) take any action that will infringe upon or misappropriate the intellectual property or other proprietary rights of DoubleBeam, any of DoubleBeam’s third party service providers or any of DoubleBeam’s participating third party merchants; (vi) sublicense or assign the Application or Merchant Listings; (vii) use the Application for any illegal purpose, including without limitation, accessing the Service from a jurisdiction where it is illegal, unauthorized or penalized; (viii) upload, post, e-mail or otherwise send or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment associated with the Service; (ix) impersonate any person or otherwise misrepresent your affiliation with any other person; (x) interfere with the servers or networks connected to any portions of the Service or violate any of the procedures, policies or regulations of networks connected to the Service; (xi) use the Service to send spam, threats, profanity or hate speech, including without limitation material that abuses or discriminates on the basis of religion, race, nationality, sexual preference, gender, etc.; and (xii) impair or harm the Service in any way whatsoever (collectively, the “Prohibited Acts”). You must comply with the implementation and use requirements contained in all documentation associated with the Application, and you will be liable for all resulting damages suffered by you, DoubleBeam and third parties if you fail to comply.
Third Party Devices. DoubleBeam does not warrant that the Application and/or Merchant Listings will be compatible with third party software or hardware, nor does DoubleBeam warrant that operation of the Service and associated Application will not damage or disrupt third software or hardware. Your mobile device is manufactured and sold by entities other than DoubleBeam and its affiliates, and DoubleBeam does not take responsibility or otherwise warrant the performance of your mobile device, including the continuing compatibility of your mobile device with the Service. By using the Service, you agree to look solely to the entity that manufactured and/or sold your mobile device for any issues related to your mobile device and its compatibility with the Service.
Third Party Software. There are software programs contained within the Application that have been licensed to DoubleBeam by third parties. The references to “Application” as used herein shall include such third party software except where the term Application refers expressly to the ownership or other specific rights of DoubleBeam. The same terms and conditions, including all limitations and restrictions, set forth in these Terms of Service apply to each third party software program contained in the Application.
Exports. You may not use or otherwise export or re-export the Application except as authorized by United States law and any other Applicable Laws. In particular, but without limitation, the Application may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not a citizen of or located in any such country or on any such list.
The Service (including, without limitation, the Application and Merchant Listings) contains material that is protected by copyright and other applicable intellectual property laws in the United States and other territories and by international treaty provisions. The Service (including, without limitation, the Application and Merchant Listings) is licensed to you by DoubleBeam solely for use under the terms and conditions of these Terms of Service and all rights not specifically granted to you herein are reserved to DoubleBeam (and to any third party with ownership rights in software used in the Service, Application and Merchant Listings). You may not remove any proprietary notice of DoubleBeam or any other party from any copy of the Application or Merchant Listings. These Terms of Service do not grant you any rights to trademarks or service marks of DoubleBeam.
DoubleBeam may, from time to time in its sole discretion, release new versions, upgrades, enhancements or modifications of the Application, which may be made available to you by through updates published in Google Play, the Apple App Store or by any other means DoubleBeam elects to make a version of the Application available. The terms of this Agreement shall apply to all such updates. If you fail to install any such new versions, upgrades, enhancements or modifications, the Service may not function as intended.
You will receive an initial text message during the account registration process containing a confirmation code. Message and data rates may apply.
Use of Feedback
DoubleBeam is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (collectively, “Feedback“) through the Service (including, without limitation, via the Application), without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Service. Furthermore, by submitting any Feedback to DoubleBeam, or in responding to questionnaires, you grant DoubleBeam a perpetual, non-exclusive, royalty-free irrevocable license and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.
DoubleBeam respects the protection of intellectual property. If you would like to submit a copyright claim for Content on which you hold a bona fide copyright, please refer to DoubleBeam’s Copyright Infringement Policy, which can be found at http://www.DoubleBeamcloudpos.com/copyright-infringement-policy/.
Your Termination. You can terminate these Terms of Service at any time by uninstalling the Application and ceasing to use the Service.
DoubleBeam’s Termination. DoubleBeam reserves the right to terminate or restrict your use of the Service, without notice, for any or no reason whatsoever. DoubleBeam can also terminate or suspend your access to the Service and/or your Account if DoubleBeam determines, in its sole discretion, that (i) you have breached any terms of these Terms of Service, (ii) you pose an unacceptable fraud risk, (iii) you provided DoubleBeam with any false, incomplete, misleading information or engage in any fraud or illegal conduct, or (iv) your continued access to the Service or your Account violates Applicable Laws or DoubleBeam’s policies.
Effect of Termination. Upon any termination of the Service or your access to the Service, the license granted hereunder shall terminate and you shall immediately destroy any copies of the Application in your possession. Any provision that is reasonably necessary to accomplish or enforce the purpose of these Terms of Service will survive any termination of these Terms of Service or your use of the Service and remain in effect thereafter in accordance with their terms, including, without limitation, this Section (Effect of Termination) and those Sections entitled (i) Disclaimer of Warranties; (ii) Ownership; (iii) Limitation of Liabilities; (iv) Indemnification; (v) Governing Law, (vi) Arbitration; (vii) Miscellaneous and (viii) Privacy.
Disclaimer of Warranties
THE SERVICE, INCLUDING THE APPLICATION AND ALL SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND NONE OF THE DOUBLEBEAM INDEMNITEES (AS DEFINED BELOW) MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, THE APPLICATION AND ALL SOFTWARE ASSOCIATED THEREWITH. TO THE EXTENT ALLOWABLE BY LAW, DOUBLEBEAM AND ITS LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DOUBLEBEAM DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE (INCLUDING USE OF THE APPLICATION, AND ALL SOFTWARE ASSOCIATED THEREWITH) OR FUNCTIONALITIES, WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT DOUBLEBEAM MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE SERVICE, INCLUDING FEATURES, WITHOUT COMPENSATION OR NOTICE TO YOU. DOUBLEBEAM SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF MOBILE DEVICES, THIRD PARTY WEBSITES, LINKS OR CONTENT (INCLUDING, WITHOUT LIMITATION, MERCHANT LISTINGS AND CONTENT PROVIDED BY OTHER USERS OF THE SERVICE), THE INTERNET AND ANY GOODS AND/OR SERVICES PURCHASED BY YOU. IN ADDITION, DOUBLEBEAM DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE APPLICATION (INCLUDING WITHOUT LIMITATION MERCHANT LISTINGS AND CONTENT PROVIDED BY OTHER USERS OF THE SERVICE) IS ACCURATE, COMPLETE OR CURRENT. YOU ACCEPT THAT ANY RELIANCE ON CONTENT OR OTHER MATERIALS PROVIDED BY THIRD PARTIES SHALL BE AT YOUR OWN RISK. DOUBLEBEAM DOES NOT REPRESENT OR GUARANTEE THAT YOUR USE OF THE SERVICE WILL BE FREE FROM INTERRUPTION, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION AND DOUBLEBEAM DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DOUBLEBEAM OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY OR OTHERWISE CONSTITUTE A REPRESENTATION BINDING UPON DOUBLEBEAM OR ITS AFFILIATED PARTIES. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
Limitation of Liabilities
IN NO EVENT SHALL DOUBLEBEAM, ITS AFFILIATES, OR ANY OF DOUBLEBEAM’S OR ITS AFFILIATES’ SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AGENTS, REPRESENTATIVES OR ANY OF THE SUCCESSORS OR ASSIGNS OF ANY OF THE FOREGOING (COLLECTIVELY, THE “DOUBLEBEAM INDEMNITEES”) BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PARTY FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICE, INCLUDING THE APPLICATION AND ALL SOFTWARE ASSOCIATED THEREWITH, OR OTHERWISE RELATED TO THE SERVICE, DOUBLEBEAM SOFTWARE OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE. IN NO EVENT SHALL DOUBLEBEAM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES FOR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE, INCLUDING THE APPLICATION, AND ALL SOFTWARE ASSOCIATED THEREWITH (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY DOUBLEBEAM FROM YOU IN CONNECTION WITH YOUR USE OF THE SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICE MAY BE BROUGHT BY YOU AGAINST DOUBLEBEAM OR ANY DOUBLEBEAM INDEMNITEE MORE THAN ONE (1) YEAR AFTER THE FIRST DAY THAT THE EVENT, ACT OR OMISSION GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold the DoubleBeam Indemnitees harmless from any and all Losses (as defined below) incurred by any of them, and defend against any claim arising out of or in connection with: (i) your access to and use of the Service, (ii) any violation or breach by you of these Terms of Service or any failure by you to comply with Applicable Laws, (iii) any dispute or litigation caused by your acts or omissions, (iv) your Content, (v) the use of your Account, whether by you or a third party, (vi) any Purchase Disputes (as defined below), and (vii) the commission of any Prohibited Acts. DoubleBeam reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify DoubleBeam, including rights to settle, and you agree to cooperate with the defense and settlement of these claims. DoubleBeam will use reasonable efforts to notify you of any claim, action or proceeding brought by a third party that is subject to the foregoing indemnification upon DoubleBeam becoming aware of it.
For purposes of the preceding paragraph, “Losses” means judgments, settlements, awards, damages, losses, charges, liabilities, penalties, interest claims (including taxes and all related interest and penalties incurred directly with respect thereto), however described or denominated, and all related reasonable costs, expenses and other charges (including all reasonable attorneys’ fees and reasonable internal and external costs of investigations, litigation, hearings, proceedings, document and data productions and discovery, settlement, judgment, award, interest and penalties), however described or denominated.
Any disputes or complaints regarding any purchase of goods or services through the Service must be directed to the participating third party merchant providing such goods or services (“Purchase Dispute”). DoubleBeam will not be a party to any complaints, disagreements, negotiations, litigation or other disputes between you and such merchant regarding any Purchase Dispute. You agree to release the DoubleBeam Indemnitees from and against any and Losses arising out of a Purchase Dispute. Further, you agree that you will not involve any DoubleBeam Indemnitee in any litigation or other dispute arising out of or related to any services, arrangement or other agreement with a merchant, or other third party in connection with the Service, including, without limitation, any Purchase Dispute. If, in breach of this provision, you attempt to do so, you will be liable for all Losses incurred by the DoubleBeam Indemnitees in connection therewith
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE §1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF NOT KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Arbitration of Disputes
PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.
The laws of the state of your primary residence (“Residence”) shall govern this Agreement without giving effect to conflict of laws principles, provided, however, that the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq. (the “FAA”) shall apply to any questions of arbitrability. DoubleBeam and you agree that any dispute, claim or disagreement between us (a “Dispute”) shall be resolved exclusively by arbitration.
The arbitration, including the selecting of the arbitrator, will be administered by JAMS, under its Expedited Arbitration Rules and Procedures (the “Rules”) by a single neutral arbitrator. The parties to the Dispute shall have thirty (30) days from commencement of the arbitration in accordance with the Rules to agree on the single arbitrator. Failing timely agreement, the arbitrator shall be selected by JAMS. Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement shall be governed by the FAA. Either party may initiate the arbitration process by filing the necessary forms with JAMS. To learn more about arbitration, you can call any JAMS office or review the materials at www.jamsadr.com. The arbitration shall be held in the location that is most convenient to your Residence. If a JAMS office does not exist in the county where your Residence is located, then the arbitration will be conducted using an accredited arbitration provider selected by DoubleBeam and reasonably acceptable to you with offices reasonably close to your Residence. If you initiate the arbitration, you will be required to pay the initial filing fee, but DoubleBeam will reimburse you for such filing fee upon receiving notice of the arbitration. DoubleBeam will also pay all of the arbitration fees and costs. If DoubleBeam initiates the arbitration, DoubleBeam will pay all of the filing fees and all of the arbitration fees and costs. DoubleBeam will bear all of DoubleBeam’s attorney’s fees and costs. You are entitled to recover your reasonable attorney’s fees and costs if you prevail in the arbitration and the award you receive from the arbitrator is higher than DoubleBeam’s last written settlement offer. When determining whether your award is higher than DoubleBeam’s last written settlement offer, your attorney’s fees and costs will not be included. Only Disputes involving you and DoubleBeam may be addressed in the arbitration. However, if the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees shall be governed by the applicable Rules.
Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If either of us arbitrates a Dispute, neither of us, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on your or our behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between you and DoubleBeam. The arbitrator may hear and determine any issue of law or fact asserted by a party as dispositive to the same extent that a court could hear and determine a motion for summary disposition (such as a motion for summary judgment under FRCP 56 by a U.S. District Court). The arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law. The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under this Agreement. The arbitrator, however, is not authorized to change or alter the terms of this Agreement or to make any award that would extend to any transaction other than yours. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between you and DoubleBeam.
BECAUSE YOU AND DOUBLEBEAM HAVE AGREED TO ARBITRATE ALL DISPUTES, NEITHER OF US WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS PERTAINING TO ANY DISPUTE. THE ARBITRATOR’S AWARD SHALL BE FINAL AND BINDING UPON THE PARTIES TO THE DISPUTE. JUDGMENT UPON ANY AWARD MAY BE ENTERED OR ENFORCED IN ANY COURT HAVING JURISDICTION, EXCEPT TO THE EXTENT IT IS SUBJECT TO REVIEW IN ACCORDANCE WITH APPLICABLE LAW GOVERNING ARBITRATION AWARDS. OTHER RIGHTS THAT YOU OR DOUBLEBEAM WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE BUSINESS AND PROFESSIONS CODE OR OTHER APPLICABLE LAWS. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
YOU HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION TO NEUTRAL ARBITRATION.
Downloading the Application from the Apple iTunes Application Store
Apple Terms. If you have downloaded the Application from the Apple iTunes Application Store (“App Store Sourced Application”), the following additional terms apply:
- You acknowledge that: (i) these Terms of Service are concluded between you and DoubleBeam only, and not Apple; and (ii) as between DoubleBeam and Apple, DoubleBeam is solely responsible for the App Store Sourced Application and content therein. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application, and, as between DoubleBeam and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be DoubleBeam’s sole responsibility.
- You and DoubleBeam acknowledge that, as between DoubleBeam and Apple, Apple is not responsible for addressing any claims by you or any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and DoubleBeam acknowledge that, in the event of any third party claim, that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between DoubleBeam and Apple, DoubleBeam, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
- You and DoubleBeam acknowledge and agree that Apple and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- Without limiting any other terms of these Terms of Service, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
These Terms of Service are a complete statement of the agreement between you and DoubleBeam, and sets forth the entire liability of DoubleBeam, its affiliates and licensors, and your exclusive remedy with respect to the Service and its use by you. Any waiver of any of the terms herein by DoubleBeam must be in a writing signed by an authorized officer of DoubleBeam and expressly referencing these Terms of Service. If any provision of these Terms of Service is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objective of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you without DoubleBeam’s prior written consent. DoubleBeam reserves the right to assign or transfer these Terms of Service or any right or obligation under these Terms of Service to any third party without notice or consent. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Revision Date: March 17, 2017