DoubleBeam Merchant Terms
User Agreement for DoubleBeam Cloud POS (the “Solution”)
YOU SHOULD CAREFULLY REVIEW THIS MERCHANT USER AGREEMENT (“AGREEMENT”). BY PURCHASING, ACCESSING AND/OR USING THE SOLUTION, YOU ARE REPRESENTING THAT (I) YOU ARE OF THE LEGAL AGE TO FORM A LEGALLY BINDING CONTRACT BETWEEN DOUBLEBEAM, INC. (“DOUBLEBEAM”) AND YOU AND ANY PERSON OR ORGANIZATION FOR WHICH YOU ACT (“YOU”); (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; 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 PURCHASING, ACCESSING AND/OR USING THE SOLUTION, SUCH PERSON, COMPANY OR OTHER LEGAL ENTITY IS HEREBY BOUND. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT PURCHASE, ACCESS OR USE THE SOLUTION (OR CONTINUE TO DO SO).
THIS AGREEMENT SHOULD BE READ TOGETHER WITH THE ORDERING DOCUMENT FOR THE SOLUTION SUBMITTED TO DOUBLEBEAM BY YOU OR ON YOUR BEHALF (“PURCHASE ORDER”). TOGETHER, YOUR PURCHASE ORDER AND THIS AGREEMENT CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND DOUBLEBEAM IN ACCORDANCE WITH THE TERMS THEREOF AND HEREOF.
CHANGES TO USER AGREEMENT. DoubleBeam reserves the right, from time to time, with or without notice, to change this Agreement in its sole and absolute discretion, including for such things as changes in law or the services and products offered as part of the Solution. The most current version of this Agreement can be viewed by visitinghttp://www.DoubleBeam.com/merchant-user-agreement/. Any updated version supersedes all previous versions. Any changes in this Agreement will not apply retroactively, but will become effective at the time the updated Agreement is made available. If you do not agree to the terms of this Agreement as in effect from time to time, your sole and exclusive remedy shall be to immediately cancel your subscription and to cease using the Solution. Failing to cancel your subscription and your continued use of the Solution constitutes acceptance of the revised Agreement.
DESCRIPTION OF THE SOLUTION. The Solution is comprised of: (a) one or more mobile devices purchased or leased by you pursuant to a purchase order and designated by DoubleBeam for use with the Solution (“Mobile Devices”); (b) one or more third party devices, accessories and other equipment purchased or leased by you pursuant to a purchase order and designated by DoubleBeam for use with the Solution (together with the Mobile Devices, “Equipment”); (b) the DoubleBeam Cloud POS hosted software application (“Hosted Application”) pre-installed on the mobile device; (c) the DoubleBeam Cloud POS mobile application (“Mobile Application” and together with the Hosted Application, “Applications”); (d) the websites located athttp://portal.DoubleBeam.com and http://portal.gopago.com (together, the “Website” and, together with the Applications, the “Software”); and (e) the services offered by DoubleBeam through the Software (“Services”). The Solution also includes any printed materials or “online” or electronic documentation provided to you by DoubleBeam and required for use of the Solution (“Documentation”). Only Equipment designated by DoubleBeam may be used in connection with the Solution.
If you have leased the Equipment as part of the Solution, the Solution is provided to you for each bundle for a thirty-six (36) month minimum service term, commencing upon shipment of the Equipment to you (the “Initial Service Term”). After the Initial Service Term, the Solution will continue to be provided to you for on a month-to-month basis (each month a “Renewal Service Term” and with the Initial Service Term, the “Service Term”) until such time as you terminate your use of the Solution by contacting DoubleBeam’s customer support. Upon any termination of the Service Term, you must return the Equipment as set forth in Section 6(b)(iii) below.
The Software licenses granted hereunder shall remain in effect for a period of one (1) month from the date of delivery of the applicable Software (the “Initial License Term”), and shall automatically renew on a month-to-month basis thereafter (each month a “Renewal License Term, and with the Initial License Term, the “License Term”) until such time as you terminate your use of the Solution by contacting DoubleBeam’s customer support.
Registration. In order to access the Solution, you must create and register an online account (“Account”) by calling one of DoubleBeam’s authorized sales representatives. You agree to maintain and promptly update your Account information in order to ensure that it remains true, accurate, current and complete. DoubleBeam may, from time to time, require you to provide additional information in evaluating your Account and eligibility to continue using the Solution. DoubleBeam reserves the right, in its sole and absolute discretion, to reject, suspend or terminate your Account (with or without notice).
Security of Accounts. You are solely responsible for maintaining the confidentiality and security of your Account password 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 password. DoubleBeam shall not be responsible for any losses arising out of the unauthorized use of your Account. If you disclose your password to anyone or share your Account, computer(s) and/or Mobile Devices with other people, you take full responsibility for their actions. Where possible, users of public or shared devices should log out at the completion of each visit. If you sell or return a computer or Mobile Device, you should logout and/or deactivate the Mobile Device before doing so. If you fail to log out or deactivate your Mobile Device, subsequent users may be able to access certain of your Account information.
Permissions. You shall be solely responsible for setting access permissions to your Account to employees or other users, and DoubleBeam shall have no liability for any permissions granted in error or by unauthorized personnel. You are solely responsible for ensuring that your authorized users comply with the terms and conditions of this Agreement.
Orders. You may place purchase orders for Equipment and Software by contacting a DoubleBeam-authorized sales representative or by such other means as DoubleBeam may make available from time to time (e.g., via the Website). No purchase order shall be binding on DoubleBeam unless and until DoubleBeam has accepted such purchase order by written confirmation (including via email) or by shipment of the Equipment and Software applicable to such purchase order. Once an order has been accepted by DoubleBeam, you may not cancel such order except with DoubleBeam’s prior express written consent, which consent shall be in DoubleBeam’s sole discretion.
DELIVERY. DoubleBeam shall use commercially reasonable efforts to ship the Equipment and Software to your shipping address as specified in your Account (or such other address as may be agreed between you and DoubleBeam) within 10 business days after DoubleBeam has received your payment for such Equipment and the related Software (or, in the case of leased Equipment, the first monthly payment for such Equipment and the related Software). Delivery of Equipment shall be FCA (Incoterms 2010) DoubleBeam’s designated facility. DoubleBeam shall determine in its discretion the means of shipment and shall not be responsible for arranging insurance on the Equipment and Software involved.
Purchased Equipment. With respect to Equipment purchased by you under your purchase order, title and risk of loss to such Equipment passes from DoubleBeam to you upon the Equipment being made available to a common carrier or your designee at DoubleBeam’s designated facility.
Leased Equipment. With respect to Equipment leased by you under your purchase order, the following shall apply:
(i) The Equipment shall remain the property of DoubleBeam and you shall have no right, title or interest therein except as a lessee under this Agreement. You shall keep all Equipment free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Equipment.
(ii) You assume and shall bear the entire risk of loss or damage to the Equipment from any use whatsoever from the date of delivery of the Equipment to your site, until such Equipment is returned to DoubleBeam’s facility. No loss or damage shall relieve you from the obligation to make payments hereunder or to comply with any other obligation under this Agreement. In the event of a loss of Equipment (but not damage), you shall immediately notify DoubleBeam thereof. With respect to any lost Equipment, you shall be obligated to pay DoubleBeam the then current fair market value of such Equipment. Once you have paid DoubleBeam the then current fair market value, DoubleBeam shall promptly ship you a new or refurbished replacement unit to replace the lost Equipment. At all times, payments for the Solution for such Equipment shall continue in effect.
(iii) Upon termination of the Service Term for any Equipment or termination of this Agreement for any reason, you shall return such Equipment to DoubleBeam. If the Equipment is not returned within thirty (30) days of such termination date, you shall be obligated to pay DoubleBeam the then current fair market value for such Equipment. If, upon return of the Equipment, DoubleBeam determines that the Equipment requires repair that is not covered under DoubleBeam’s warranty (as set forth in Section 19 below), you shall be required to pay for such repairs at DoubleBeam’s standard fees. When returning Equipment an MRA # is required.
Special Power of Attorney. You hereby grant to DoubleBeam a purchase money security interest in all Equipment shipped to you, as security for the performance by you of all of your obligations arising under this Agreement and your purchase order. DoubleBeam is hereby authorized by you to cause this Agreement or any other statement or other instrument in respect of this Agreement showing the interest of DoubleBeam in the Equipment, including Uniform Commercial Code financing statements, to be filed and recorded, and you grant to DoubleBeam the right to execute your name thereto.
Standard Products. Except for compatibility with the Software, DoubleBeam shall have no obligation to ensure that the Equipment operates in conjunction with your equipment, software or other products or systems, and you shall be responsible for all costs incurred in connection with any modifications you make to your own equipment, software or other products or systems.
THIRD PARTY PRODUCTS AND SERVICES
Third Party Products. You acknowledge that the Solution is designed for use only in connection with supported Mobile Devices and other Equipment designated by DoubleBeam. DoubleBeam reserves the right to add or remove a device from the list of supported Mobile Devices or other Equipment in its discretion. You acknowledge and agree that the Equipment is manufactured by entities other than DoubleBeam. Except for Equipment purchased or leased pursuant to a purchase order between you and DoubleBeam (which Mobile Devices are subject to the warranty terms set forth in Section 19 below), DOUBLEBEAM DOES NOT TAKE RESPONSIBILITY OR OTHERWISE WARRANT THE PERFORMANCE OF ANY MOBILE DEVICE OR OTHER THIRD PARTY DEVICES, INCLUDING THE CONTINUING COMPATIBILITY OF ANY SUCH DEVICE WITH THE SOLUTION, AND BY USING ANY SUCH DEVICES WITH THE SOLUTION, YOU AGREE TO LOOK SOLELY TO THE ENTITY THAT MANUFACURED SUCH DEVICE FOR ANY ISSUES RELATED TO ITS COMPATIBILITY WITH THE SOLUTION.
Third Party Services. You acknowledge that DoubleBeam uses third party services (such as networking, connectivity, storage, fulfillment and related technology) to provide the Solution. Unless you have purchased such third party services pursuant to your purchase order with DoubleBeam, such third party service providers may charge you additional fees in connection with your use of the Solution and it is your sole responsibility to pay such fees. DoubleBeam expressly disclaims all liability for the operation or security of such third party services, for your inability to use the Solution as a result of such third party services, for any act or omission of such third party service providers, or for your breach of the terms of your contract with such third party service providers as a result of using the Solution.
Pass Through Provisions Regarding Wireless Services. If you are purchasing a bundled Solution that includes a cellular data plan (“Wireless Services”), the following shall apply: you acknowledge that DoubleBeam is providing the Wireless Services pursuant to agreements with third party service providers. In connection with DoubleBeam’s agreement with such third party service providers, you shall be bound by certain pass through provisions as set forth below:
If Wireless Services are provided by Verizon Wireless:
You expressly understand and agree that you have no contractual relationship whatsoever with the underlying wireless service provider or its affiliates or contractors and that you are not a third party beneficiary of any agreement between DoubleBeam and the underlying carrier. In addition, you acknowledge and agree that the underlying carrier and its affiliates and contractors shall have no legal, equitable or other liability of any kind to you and you hereby waive any and all claims or demands therefor.
You shall indemnify and hold harmless DoubleBeam and such third party service providers, and their officers, employees and affiliates, from and against any and all third party claims, irrespective of the nature of the claims, alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) arising out of or in connection with any breach of such pass through provisions by you, or any claims for libel, slander, or any tangible property damage, personal injury or death, arising in any way, directly or indirectly, in connection with your acts or omissions under this Agreement with respect to the Wireless Services, or your use, failure to use, or inability to use the Wireless Services. Indemnities in this section shall survive the expiration or termination of this Agreement.
Ownership. The Solution (other than the Equipment purchased by you), any Documentation and all copies provided to you hereunder are licensed and not sold, and you understand and agree that this Agreement does not constitute a sale of Software or any intellectual property rights. You acknowledge that ownership of all patents, copyrights, mask work rights, trademarks, trade names and other intellectual property rights relating to or residing in the Solution and Documentation (including without limitation any proprietary electronics, software and technical information of DoubleBeam or its licensor therein), including derivative works based on any of the foregoing, are reserved to and are the exclusive property of DoubleBeam and its licensors. The Solution and Documentation is protected by U.S. copyright laws and international copyright treaties. You shall promptly notify DoubleBeam of any actual or threatened misappropriation or infringement of DoubleBeam’s or its suppliers’ proprietary rights which comes to your attention. Without limiting the generality of the foregoing, DoubleBeam reserves the right at any time, in its discretion and without prior notice, to change, revise, modify, enhance, add to and/or upgrade the Solution, including (but not limited to) to remove or discontinue particular features or functionalities thereof.
Grant of License. Subject to the terms and conditions of this Agreement and the payment of applicable fees, DoubleBeam hereby grants you, during the applicable License Term for Software or the applicable Service Term for a bundled Solution that includes leasing of Equipment, a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, solely in connection with your use of the Solution for internal business purposes, to (i) access and use the Applications solely in object (executable) code form on and through the number of authorized Mobile Devices; (ii) download and install the Mobile Application solely in object (executable) code form on the number of Mobile Devices owned or leased by you; (iii) access and use the Website; and (iv) display, download, print and reproduce the Documentation.
Restrictions. You shall not use or copy the Software and/or Documentation, or any part thereof, except as permitted under Section 8(b) above. You shall not, and shall not enable any third party, to: (i) copy or duplicate the Software (or any part thereof); (ii) reverse engineer, decompile, disassemble, translate, modify, alter or change the Software, or any part thereof, except to the extent that the foregoing restriction is expressly prohibited by Applicable Law; (iii) market, distribute, sell, assign, pledge, sublicense, lease, deliver or otherwise transfer the Software (or any part thereof); (iv) disclose or publish any results of any benchmark tests run on the Equipment or Software; (v) remove, disable, damage, circumvent or otherwise interfere with the security of the Equipment or Software; or (vi) obfuscate or remove from the Equipment or Software, or alter, any of DoubleBeam’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Equipment or Software, without the prior express written consent of DoubleBeam. You shall duplicate all such proprietary rights notices on all copies of the Software permitted to be made hereunder.
FEES; PAYMENT TERMS.
Fees. You agree to pay DoubleBeam (or its authorized reseller, if applicable) the applicable fees for the Solution purchased by you pursuant to a purchase order that has been accepted by DoubleBeam. DoubleBeam reserves the right to change its fees at any time and will provide you with advance notice thereof. Fee changes will become effective at the beginning of the next Renewal Service Term or Renewal License Term, as applicable. The fees set forth in a purchase order do not include any excise, sales, use or other taxes, and therefore are subject to increase in the amount of any such taxes (excluding any tax on DoubleBeam’s net income) that DoubleBeam may be required to collect or pay upon the delivery of the Solution. In addition, the fees set forth in a purchase order do not include any shipping, handling, insurance or similar charges, all of which will be invoiced to and paid by you as provided herein.
Invoicing. With respect to the Equipment purchased by you, DoubleBeam (or its authorized reseller, if applicable) shall invoice you for the fees set forth in the applicable purchase order upon DoubleBeam’s acceptance of such purchase order. With respect to the Software, DoubleBeam (or its authorized reseller, if applicable) shall invoice you for the initial monthly fee set forth in the applicable purchase order or other ordering document upon DoubleBeam’s acceptance thereof, and thereafter, on a monthly basis on the first of each month. With respect to leased Equipment, DoubleBeam (or its authorized reseller, if applicable) shall invoice you for the fees set forth in the applicable purchase order upon DoubleBeam’s acceptance thereof, and thereafter, on a monthly basis on the first of each month. All payments shall be in U.S. dollars.
Payment Terms. If DoubleBeam is invoicing you, payment is due thirty (30) days from DoubleBeam’s invoice date unless otherwise stated herein. If DoubleBeam permits you to pay by payment card, payments shall be made pursuant to the terms provided by DoubleBeam or its billing partner when you set up your payment card billing arrangement with DoubleBeam. Any amount which is not paid when due under this Agreement shall bear a late fee at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less. All fees are non-refundable. If you fail to pay any invoiced amount when due, or if DoubleBeam is unable to charge your payment card when due, then, in addition to any other remedies available to DoubleBeam under this Agreement, DoubleBeam shall be entitled to withhold the provision of all or any part of the Solution until you are current in your payment.
Required Consents. You shall be solely responsible for obtaining any and all consents required under Applicable Laws (including without limitation under the Fair Credit Reporting Act (“FCRA”) (15 USC §1681 et. seq.), the Telephone Consumer Protection Act (“TCPA”) (47 U.S.C. § 227 et. seq.) administered by the Federal Communication Commission and any state versions of the foregoing) from your customers and/or employees in connection with your use of the Solution, including without limitation, your transmission of any email and text receipts, your implementation of any gift card and/or loyalty programs, and your use of any Content. Without limiting the generality of the foregoing, if you provide DoubleBeam with any personally identifiable information about another person, you represent and warrant that you have obtained that person’s explicit consent to do so and for DoubleBeam or its third party service providers to collect, use and process such personally identifiable information for the purposes of using the Solution. If any customer who makes a purchase of goods or service from you elects to receive transaction receipts in the form of email or text message, such customer must directly enter his/her email address or phone number in the appropriate space displayed on your Mobile Device; you are NOT permitted to add or modify this information on behalf of a customer.
Permitted/Prohibited Uses. You agree that you will: (i) use the Solution only for lawful purposes; (ii) not access the Solution from a jurisdiction where it is illegal, unauthorized or penalized; (iii) 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 Solution or any computer software or hardware or telecommunications equipment associated with the Solution; (iv) not impersonate any person or otherwise misrepresent your affiliation with any other person, including, without limitation, any person affiliated with the Solution; (v) not use the Solution 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.; (vi) not interfere with the servers or networks connected to any portions of the Solution or violate any of the procedures, policies or regulations of networks connected to the Solution; and (vii) not impair or harm the Solution in any way whatsoever.
Compliance with Laws. You agree to use the Solution in accordance with this Agreement and all applicable laws, statutes, rules and regulations of the relevant countries, including without limitation FCRA and TCPA (“Applicable Laws”). You further agree that in your conduct of business with or in connection with DoubleBeam, you shall comply with all applicable anti-bribery laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”), which prohibit making, authorizing, offering or promising to give monies or any other thing of value, directly or indirectly, to any government official or any other person for the purpose of securing any improper or unfair advantage or obtaining or retaining business in connection with such business activities.
Card Network Rules; PCI. You agree to comply with all applicable bylaws, rules, regulations, policies and procedures of Visa USA, Inc., Visa International, Inc., MasterCard International, Inc., Discover Financial Services, LLC, American Express Company, and any other payment or debit card networks (collectively, the “Network Rules”), as those Network Rules may be amended from time to time. In addition, you agree to comply with and adhere to the payment card industry (“PCI”) data security standards (“DSS”) in effect from time to time (including without limitation the Payment Application Data Security Standard (PA DSS)).
Special Terms for Mobile Storefront. If you have created a Mobile Storefront in connection with your use of the Solution, you also agree to the following:
You may only create a Mobile Storefront to promote a legitimate business;
• By listing an item on your Mobile Storefront, you represent and warrant that you may legally sell the item;
• All Content posted on your Mobile Storefront will be made available to all users of the DoubleBeam Cloud POS Consumer Application;
• You must accurately and clearly describe your item and all terms of sale in your Mobile Storefront;
• You may not display any Content on your Mobile Storefront that is an ad or could be construed as an ad;
• Your Mobile Storefront will not be used primarily or substantially to promote or advertise alcohol or tobacco products, firearms, or other products or services that may not be lawfully purchased or used by minors;
• You will not direct your Mobile Storefront, or any Content on your Mobile Storefront, to children under the age of 13;
• You will not use deceptive practices to generate traffic to your Mobile Storefront;
• You will not take any action that may undermine any online reviews posted to or regarding your Mobile Storefront; and
• You are responsible for ensuring that your Mobile Storefront, including any Content you post on your Mobile Storefront, shall comply with all Applicable Laws and this User Agreement.
YOUR CONTENT. You are solely responsible for your access to and use of the Solution and any and all text, data, photos, graphics, images, logos, trademarks, tradenames, service marks, promotions, specials, Account information, product and other information relating to your business (collectively, “Content”) that you or your users submit or transmit to, through or in connection with your use of the Solution. 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. 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 Solution 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 Solution 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 Solution 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 Solution at any time (with or without notice). DoubleBeam will discontinue using your Content on or through the Solution within a commercial reasonable period after you remove such Content from your Account.
You may also enable certain features and links to certain third party websites 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, products or other materials on or available from such third party websites in.
SECURITY. You are responsible for (i) ensuring the security, integrity and confidentiality of all your Content, and (ii) all losses of Content and other damages of any kind that is lost during synchronization or other transfer between your Mobile Devices and DoubleBeam or other third party servers. Further, you shall ensure that all security features in the Solution are properly implemented to protect Content that consists of nonpublic personal information or Cardholder Data (as that term is defined by PCI DSS) that are stored, transmitted or processed through the Solution. DOUBLEBEAM SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY, AND YOU ASSUME ALL LIABILITY FOR, ANY UNAUTHORIZED PROCESSING, LOSS, USE, DISCLOSURE, ACQUISITION OF OR ACCESS TO CONTENT, NONPUBLIC PERSONAL INFORMATION OR CARDHOLDER DATA OR FRAUD WITH RESPECT TO THE SOLUTION, INCLUDING ANY LIABILITY FOR FINES, PENALTIES OR OTHER MONETARY LOSSES.
PRIVACY. By using the Solution, you consent to DoubleBeam collecting and sharing your Account information, Content and other information submitted by you or your users through the Solution with DoubleBeam’s third party partners and service providers. DoubleBeam may also collect anonymized, aggregate data in connection with your use of the Solution for purposes of marketing, data analytics, and enhancing and optimizing the Solution.
SUPPORT. You shall be entitled to help desk support (via email, phone, chat, or such other means as DoubleBeam may make available from time to time) during the applicable License Term or Service Term. Support shall be provided in accordance with DoubleBeam’s then current support policies and procedures for the Solution. Any upgrades or updates to the Solution provided to you shall be subject to this Agreement, including the license rights and restrictions set forth herein. DoubleBeam will only be obligated to provide support for the then current production version of the Solution. Additional support may be obtained pursuant to a separate written agreement between the parties.
UPDATES; UPGRADES. DoubleBeam may, from time to time in its sole discretion, release new versions, upgrades, enhancements or modifications of the Solution. You agree that 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 Solution may not function as intended.
AVAILABILITY OF THE SOLUTION. You understand and agree that you are solely responsible for establishing and maintaining the appropriate and necessary connection between your Mobile Devices and/or other equipment and the Solution. DoubleBeam conducts routine maintenance with respect to the Solution. DoubleBeam reserves the right to shut down access to the Solution with no notice should emergency maintenance become necessary. DoubleBeam’s support policies for the Solution are available upon request.
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 Solution. Communications will be delivered by (a) posting a notice or message through the Applications or Website; or (b) sending electronic mail to the email address listed in your Account profile. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, whether or not you actually receive the email. All Communications will be considered received by you within 24 hours of the time such Communication is posted to the applicable Application or Website or emailed to you. You also agree that your electronic signature on any agreements or documents in connection with the Solution has the same effect as a physical signature.
USE OF FEEDBACK. DoubleBeam is free to use any suggestions, ideas, comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (except for your Content and Account information) in connection with your use of the Solution (collectively, “Feedback”) (including, without limitation, via the Applications and Website), 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 Solution. Furthermore, by submitting any Feedback to DoubleBeam, or in responding to questionnaires, you grant DoubleBeam a worldwide, perpetual, non-exclusive, royalty-free, sublicensable, 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.
WARRANTIES AND DISCLAIMERS.
Software Warranty. Subject to Section 19(c) and (d), DoubleBeam warrants that the Software will perform substantially in accordance with the description on the Website during the License Term or Service Term. If the Software does not conform to the foregoing warranty, DoubleBeam shall use commercially reasonable efforts to correct the Software. If DoubleBeam is unable to correct the Software using commercially reasonable efforts, your sole and exclusive remedy shall be to stop using the Software and cancel your Account by notifying DoubleBeam’s customer support. The foregoing states DoubleBeam’s sole and exclusive warranty and your sole and exclusive remedy with respect to the warranty set forth in this Section 19(a).
Equipment Warranty. Subject to Section 19(c) and (d), if, during the Warranty Period (as defined below), it is determined that any component of Equipment (except for software components) is defective due to faulty workmanship or defective materials, then you shall, at your expense, return such Equipment to DoubleBeam. Upon receipt of any such Equipment during the applicable Warranty Period, DoubleBeam shall, at its expense, repair or replace (at DoubleBeam’s discretion) such Equipment and ship the repaired or replaced Equipment to you at its original location. DoubleBeam’s obligations hereunder shall arise only if DoubleBeam’s examination of such Equipment in question discloses to DoubleBeam’s satisfaction that the claimed defect or nonconformity actually exists and was not caused by any improper installation, testing or use, any misuse or neglect, any failure of electrical power, air conditioning or humidity control, or any act of God, accident, fire or other hazard. In addition, no trouble found warranty repairs are limited to ten percent (10%) of all Equipment (by Equipment type) returned for repair by you on a quarterly basis. In the event you exceed this limit in any quarterly period, DoubleBeam may assess its then current fees for “clean and test” services on all Equipment in excess of such percentage. The Warranty Period shall be (i) for all Equipment purchased by you under an applicable purchase order, thirteen (13) months from the date such Equipment is shipped from DoubleBeam’s facility or the date title to such Equipment passed to you, whichever date is earlier, and (ii) for all Equipment leased by you under an applicable purchase order, the Initial Service Term. Repair or replacement of Equipment (or any part thereof) does not extend the Warranty Period for such Equipment.
Warranty Exclusions. The express warranty of DoubleBeam stated in Section 19(a) and (b) above does not apply to any Solution (or any component thereof) (i) that is subjected to misuse, neglect or accident, or is used in an environment, in a manner or for a purpose which it was not designed as specified in the accompanying Documentation (including without limitation use of the Applications on or connected with an operating system or mobile devices other than the systems and/or versions specified in the Documentation, data which does not conform to DoubleBeam’s specified format, operator error); (ii) which has been altered, modified, repaired or serviced in any respect except by DoubleBeam or its representatives; (iii) the failure of which is caused by third party hardware, software or services not provided by DoubleBeam or its representatives or any other cause beyond DoubleBeam’s reasonable control.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 19(a) AND 19(b), THE SOLUTION (INCLUDING WITHOUT LIMITATION THE EQUIPMENT, APPLICATIONS, WEBSITE AND SERVICES) IS PROVIDED “AS IS”, WITH ALL FAULTS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER DOUBLEBEAM NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OF THE SOLUTION WILL MEET THE REQUIREMENTS OF YOU OR YOUR CUSTOMERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DOUBLEBEAM DOES NOT WARRANT AND MAKES NO ASSURANCES THAT THE OPERATION OF THE SOLUTION 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. UNDER NO CIRCUMSTANCES DOES DOUBLEBEAM REPRESENT OR WARRANT THAT ALL PROGRAM ERRORS IN THE SOLUTION CAN BE REMEDIED. DOUBLEBEAM MAKES NO WARRANTIES THAT THE SOLUTION WILL OPERATE IN CONJUNCTION WITH ANY SOFTWARE OR EQUIPMENT OTHER THAN THE MOBILE DEVICES AND THE SOFTWARE AND EQUIPMENT IDENTIFIED IN THE DOCUMENTATION. DOUBLEBEAM SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF MOBILE DEVICES, THIRD PARTY DEVICES, THIRD PARTY SERVICES, LINKS, ACCOUNT INFORMATION AND CONTENT (INCLUDING THEIR CONTINUING COMPATIBILITY WITH THE SOLUTION). IN ADDITION, DOUBLEBEAM DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SOLUTION IS ACCURATE, COMPLETE OR CURRENT. DOUBLEBEAM SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. 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. THE EXPRESS WARRANTIES OF DOUBLEBEAM IN THIS SECTION 19 APPLY ONLY TO SOLUTIONS SOLD AND USED IN THE UNITED STATES AND ITS TERRITORIES. ALL SOLUTIONS ARE DESIGNED FOR USE IN THE UNITED STATES AND ITS TERRITORIES ONLY AND USE OUTSIDE THE UNITED STATES OR ITS TERRITORIES SHALL VOID ALL WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DOUBLEBEAM MAKES NO WARRANTY, AND PROVIDES NO ASSURANCES, THAT THE SOLUTION WILL MEET CERTIFICATION REQUIREMENTS OF ANY REGULATORY OR LICENSING AGENCY OUTSIDE THE UNITED STATES OR ITS TERRITORIES.
INDEMNIFICATION. You shall defend, indemnify and hold harmless DoubleBeam, its affiliates and 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”) from and against any and all claims, proceedings, losses, damages, liabilities, fines, penalties, costs, and fees (including reasonable attorneys’ fees) (“Losses”) incurred by any of them arising out of or in connection with (a) any breach (actual or alleged) of your representations, warranties or obligations in this Agreement by you or your users; (b) any failure by you or your users to comply with Applicable Laws; (c) any access to or use of the Solution or your Account by you or your users; (d) any Consumer Disputes (as defined in Section 22 below); and (d) any Content submitted by you or your users, including the storage, transfer, processing, loss, disclosure, acquisition or use of such Content, and any claims that such Content violates Applicable Law or otherwise infringes or misappropriates upon any right of, or has caused any damage to, a third party. 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.
LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, (A) IN NO EVENT SHALL ANY OF THE DOUBLEBEAM INDEMNITEES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF SOFTWARE AND CONTENT) RELATING IN ANY MANNER TO THE SOLUTION (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT OR OTHERWISE), EVEN IF DOUBLEBEAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGE; (B) DOUBLEBEAM’S ENTIRE LIABILITY RELATING IN ANY MANNER TO THE SOLUTION (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY), REGARDLESS OF THE FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY YOU FOR THE SOLUTION UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING, OR $100 IF NO FEES WERE PAID; AND (C) DOUBLEBEAM SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOLUTION, AND YOU SHALL DEFEND DOUBLEBEAM FROM, AND INDEMNIFY AND HOLD DOUBLEBEAM HARMLESS AGAINST, ALL SUCH CLAIMS. THE LIMITATIONS CONTAINED IN SECTIONS 19 AND 20 ABOVE AND THIS SECTION 21 ARE A FUNDAMENTAL PART OF THE BASIS OF DOUBLEBEAM’S BARGAIN HEREUNDER, AND DOUBLEBEAM WOULD NOT SELL THE SOLUTION TO YOU ABSENT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SOLUTION 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.
CONSUMER DISPUTES. You acknowledge and agree that purchase transactions completed through the Solution are transactions between you and your consumers. DoubleBeam will not be a party to any disagreements, complaints, negotiations, litigation or other disputes (“Consumer Disputes”) between you and any consumer or other third party you interact with in connection with your use of the Solution. You assume all risk dealing with such third parties and agree to resolve Consumer Disputes directly with such third parties and without involving DoubleBeam. You release the DoubleBeam Indemnitees from and against any and Losses arising out of any Dispute.
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.”
TERM. This Agreement shall commence upon the earlier of (a) your initial payment for the Solution, and (b) your electronic acceptance of this Agreement. This Agreement shall continue in effect until terminated as set forth herein.
Your Termination. You may terminate your use of the Solution at any time by submitting an account cancellation request via email tosupport.cloudpos@DoubleBeam.comor contacting DoubleBeam’s customer support at 1-888-867-7732. If you have purchased the Solution through a reseller, you should notify your reseller that you wish to cease using the Solution.
DoubleBeam’s Termination. DoubleBeam can terminate or suspend your access to and use of the Solution and Account (i) if you have breached any terms of this Agreement, (ii) if you provide DoubleBeam with any false, incomplete or misleading information or engage in any fraud or illegal conduct, (iii) if you initiate or become subject to proceedings for bankruptcy, liquidation, winding up or insolvency, (iv) if you have purchased a bundled Solution that includes Wireless Services and have exceeded five hundred (500) Mb of data usage in any given one-month period; or (v) if DoubleBeam determines that your continued use of the Solution or Account violates Applicable Laws, DoubleBeam’s policies or contractual obligations with DoubleBeam’s third party suppliers. DoubleBeam reserves the right to terminate, suspend or restrict your use of the Solution, without notice, for any or no reason whatsoever. In addition, DoubleBeam reserves the right to change, suspend or discontinue any component of the Solution at any time. If any material change is made to the Solution (as determined in DoubleBeam’s sole discretion), DoubleBeam will provide you with advance notice via email at the address identified in your Account. If you do not agree to any change to the Solution, your sole and exclusive remedy shall be to notify DoubleBeam in writing of your intent to cancel your Account and terminate this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement for any reason whatsoever, your license rights shall terminate and you shall immediately discontinue use of the Solution. You will not be issued a refund for the current License Term or Service Term. If you have purchased a bundled Solution that includes Equipment leasing, then (i) if you terminate this Agreement during the Initial Service Term, you shall be obligated to pay DoubleBeam on the termination date the monthly fees due for the number of months remaining in the Initial Service Term; and (ii) in any event, you must return the Equipment to DoubleBeam under Section 6(b)(iii) above. If you fail to return the Equipment, you must pay DoubleBeam for the fair market value of such Equipment as set forth in Section 6(b)(iii). Further, you shall be obligated immediately (i) to delete, remove and/or otherwise destroy all copies (including backup copies) of the Solution (or any part thereof) and Documentation (in whatever tangible, digital or other media such copies may be embodied) and (ii) upon DoubleBeam’s request, to certify in writing as to the completion of those acts. Upon termination of your Account, DoubleBeam may permanently delete all of your Content from DoubleBeam’s systems. It is your responsibility to retrieve and/or transfer any Content stored with DoubleBeam prior to any termination date. DoubleBeam does not provide data retrieval services, data conversion services or data migration services. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement (including without limitation, indemnification obligations and limitations of liability) will survive any termination of this Agreement or your use of the Solution and remain in effect thereafter in accordance with their terms.
EXPORT/LAWS. The Solution is designed for use in the United States and DoubleBeam makes no warranty and provides no assurances that the Solution will meet certification requirements of any regulatory or licensing agency outside the United States. Any use of the Solution in other jurisdictions shall be at your own risk, and you are solely responsible for ensuring compliance with all Applicable Laws of those jurisdictions. In addition, you may not use or otherwise export or re-export the Solution except as authorized by United States law and any other Applicable Laws of any other jurisdiction. In particular, but without limitation, the Solution 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 Solution, you represent and warrant that you are not a citizen of or located in any such country or on any such list.
COPYRIGHT INFRINGEMENT. DoubleBeam respects the protection of intellectual property. If you would like to submit a copyright claim for material on which you hold a bona fide copyright, please refer to DoubleBeam’s Copyright Infringement Policy, which can be found athttp://www.DoubleBeamcloudpos.com/copyright-infringement-policy/.
GENERAL. Together with the applicable purchase order, this Agreement constitutes the entire agreement between DoubleBeam and you and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, relating to the subject matter hereof. The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. You may not assign this Agreement, in whole or in part, without DoubleBeam’s prior written consent. Subject to the preceding sentence, this Agreement shall bind you and your permitted successors and assigns. DoubleBeam may assign or delegate this Agreement, or any of its rights or obligations hereunder, in its sole discretion. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give the maximum effect to the parties’ intentions as reflected in the provision, and that the other provisions of the Agreement shall remain in full force and effect. Notices made by you to DoubleBeam under this Agreement must be sent to DoubleBeam atsupport.cloudpos@DoubleBeam.com.
SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.
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 where your office is located (“Office”) (which shall be such office address as is entered by you under your Account) 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 Office. If a JAMS office does not exist in the county where your Office is located, then the arbitration will be conducted using an accredited arbitration provider selected by DoubleBeam and reasonably acceptable to you with offices within a reasonable distance from your Office. If you initiate the arbitration, you will be required to pay the first $250 of any filing fee. DoubleBeam will pay any filing fees in excess of $250, and DoubleBeam will 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 (not to exceed $20,000) 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. 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. Only Disputes involving you and DoubleBeam may be addressed in the arbitration. 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.
Rev Date: June 23, 2015