DOUBLE ATELIER, INC., a Delaware Corporation
228 Park Ave S, PMB 61667, New York, NY 10003, USA
Please review these terms and conditions carefully.
This Double Atelier Services Agreement (the “Agreement”) is a legally binding contract between Double Atelier, Inc. ("Double", “we”, “us” and/or “our”) and you (“Customer”, “you,” and/or “your”) governing your use and access to our Services (defined below). Double and Customer are hereinafter referred to from time to time individually as “Party” and collectively as “Parties”. For a list of defined terms, please refer to Section 1 (Definitions).
RECITALS
Double provides a modern assistant service through its owned and operated websites, including www.withdouble.com (the “Site”) and related platforms, including the Double web and iOS app, and Slack and Chrome extensions (the “Double Platform”). The Site, Double Platform and all administrative and/or professional services provided to Customer in relation thereto (“Talent Services”, as further defined in Section 1 (Definitions) below) are referred to collectively in this Agreement as the “Services.” By clicking a button or checking a box marked “I Agree” (or a similar phrase) or by entering into a Double Order Form (as defined in Section 1), Customer agrees to and accepts all of the terms and conditions set forth herein. This Agreement applies to you whether you are a natural or legal person. If you are accepting this Agreement as an individual, you represent and warrant that you are at least eighteen (18) years of age. If you are accepting this Agreement on behalf of a company or any other (legal or natural) person, you represent and warrant that you have full authority to bind that company or person to these terms and conditions. If you or your organization is bound by a Double Order Form (as defined in Section 1 (Definitions) below), then that Double Order Form will take precedence over this Agreement solely to the extent necessary to resolve any conflict or inconsistency. All other provisions of this Agreement will remain in full force and effect. This Agreement is effective as of the date you accept the terms of this Agreement or as of the date of last signature on an applicable Double Order Form between you and Double (“Effective Date”).
THIS AGREEMENT CONTAINS AN ARBITRATION ATTACHMENT, WHICH, WITH LIMITED EXCEPTION, REQUIRES CUSTOMER TO SUBMIT CLAIMS CUSTOMER HAS AGAINST DOUBLE TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION ATTACHMENT, (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DOUBLE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. Definitions
1.1 “Agreement” has the meaning given to this term in the preamble.
1.2 “Confidential Information” means any information or data disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information that (i) is in the public domain through no act or omission of receiving Party; (ii) is or was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (iii) is or was properly disclosed to receiving Party, without restriction, by another person with the legal authority to do so; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
1.3 “Commitment Term” means the fixed term set forth in an applicable Double Order Form for which Customer commits to subscribe and Double commits to provide Services.
1.4 “Company Policies” means the Double Privacy Notice and Double Data Processing Addendum.
1.5 “Customer” has the meaning given to this term in the preamble.
1.6 “Customer Contact” means an individual designated by Customer to be Talent’s primary point of contact with Customer.
1.7 “Customer Data” mean data uploaded or transmitted by or on behalf of Customer via the Double Platform.
1.8 “Double Order Form” means an order form, executed by the Parties pursuant to which Customer commits to subscribe and Double commits to provide Services for a fixed term and which sets forth the Double Package, Fees, Commitment Term and other specific requirements agreed to by Double and Customer.
1.9 “Double Package” means the scope, term, and pricing of services selected by Customer via either an online order for Services submitted by Customer and accepted by Double or via a Double Order Form executed by both Customer and Double.
1.10 “Double Platform” has the meaning given to this term in the Recitals.
1.11 “Double Platform” means Double’s mobile and web applications and software extensions for communicating with and directing the Talent.
1.12 “Effective Date” has the meaning given to this term in the Recitals.
1.13 “Excluded Claims” has the meaning given such term in Section 12.1 (Indemnification by Double).
1.14 “Fees” means those fees payable for the selected Double Package, subject to any supplementary pricing terms set forth in any applicable Double Order Form.
1.15 “License Restrictions” has the meaning given to this term in Section 4.2 (License Restrictions).
1.16 “Services” has the meaning given to such term in the Recitals.
1.17 “Site” has the meaning given such term in the Recitals.
1.18 “Talent” means one or more select independent contractor(s) contracted by Double and specializing in providing administrative assistance and/or other professional services to Customer via this Agreement and any Double Order Form.
1.19 “Talent Services” means administrative assistance or other professional services from one or more Talent(s) in Double’s network through the Double Platform. Talent Services vary greatly but may include, without limitation, calendar management, contact management, inbox management, travel booking, event planning, expense reporting, bookkeeping, budgeting, reporting, hiring processes support, file organization, document creation, preparation presentation, content writing, social media management, ad-hoc research, and process development.
1.20 “Term” has the meaning given to such term in Section 14.1 (Term).
2. Double Responsibilities
2.1 Services. Subject to the terms of this Agreement and any applicable Double Order Form, Double agrees to provide to Customer the Double Package to which Customer has chosen to subscribe, including administrative assistance or other professional services from one or more Talent(s) in Double’s network through the Double Platform.
2.2 Talent Confidentiality; Background Checks. Double agrees that (i) it will enter into a written agreement with each Talent containing confidentiality provisions that provide at least the same level of protection for Confidential Information as those in this Agreement, and (ii) Customer Data shall only be accessed by, and Talent Services shall only be performed for the Customer by, Talent that has executed such a written agreement with Double. Customer may also elect to enter into a non-disclosure agreement directly with Talent in a form that is reasonably satisfactory to Talent. Double will also run background checks and otherwise vet all Talent residing in the United States and Canada.
2.3 Data Security. Double will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of all Customer Data (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
2.4 Talent Availability; Replacement. Double will use commercially reasonable efforts to make one or more Talent available to perform the Talent Services during the Term. If Customer reasonably, and in good faith, determines that the performance or conduct of any Talent providing Services to Customer is unsatisfactory, Customer may submit a request for replacement to Double. Such requests must be made in writing and must specify Customer’s basis for seeking a replacement. Acceptable reasons for seeking replacement include without limitation, inability to meet the position qualifications, technical incompetence, failure to perform assigned tasks, poor attendance, ethics violations, unsafe work habits, or reasonable Customer dissatisfaction. Customer may also submit a request for replacement if any Talent providing Services to the Customer has an extended illness or departs either at the Talent’s choice or Double’s choice. In each case, Double shall find a replacement within thirty (30) days of receipt of a request for replacement. Customer shall be entitled to recover a pro-rata portion of the fees paid to Double during the period during which Talent Services were unavailable.
3. Customer Responsibilities
3.1 Customer Profile. As part of the subscription process, Customer must fill out the information profile required by Double, including designating a Customer Contact. Double (and its Affiliates) and Talent may access such profile.
3.2 Communication of Required Information and Documents. Customer shall use reasonable efforts to ensure that all information and documents provided to Double as part of the subscription process, and subsequently, are and will be current, complete, and accurate. Customer accepts that Double bears no liability regarding the verification of the information and the documents provided by Customer (or by any other customer). Customer will notify Double promptly of any change to any information that it has provided.
3.3 Equipment. Customer is solely responsible and liable for ensuring throughout the Term that Equipment (defined below) meets all specifications set forth in any usage guides and policies for the Double Platform which may be made available to Customer via the Site or otherwise, from time to time, by Double (“Documentation”). Double reserves the right to specify and/or modify at any time the requirements set forth in Documentation and will inform Customer of any such modifications, either through the Double Platform user interface, in an email notification, or through other reasonable means. “Equipment” means all virtual or physical third-party devices that the Customer chooses to purchase, install, use, or operate in order to use the Double Platform, including software, desktop computer(s), laptop(s), tablet(s), mobile device(s), telecommunication device(s) and hardware product(s) capable of operating a wide variety of computer programs as well as internet connection(s) that meet the minimum requirements needed to use the Double Platform.
3.4 Access to Double Platform. Customer is responsible for the safeguarding, confidentiality, security, and appropriate use of its credentials to access the Double Platform and must take reasonable steps to prevent any unauthorized third party from gaining access to the Double Platform via Customer. In the event of loss, theft, breach of confidentiality, or any risk of misuse of its credentials or other breach of security related to Customer’s use of the Services, Customer must promptly notify Double in writing. Customer is responsible for all activity that occurs via Customer’s account, whether or not authorized by Customer. Double will not be liable for any loss or damage arising from Customer’s failure to comply with this Section 3.4 (Access to Double Platform), regardless of whether Customer has notified us of such unauthorized use.
3.5 Customer Cooperation. Customer acknowledges and agrees that performance of Talent Services depends on Customer's actions. Accordingly, Customer will use all commercially reasonable efforts to provide Double and its Talent with reasonable information, cooperation, and assistance in order for Talent to perform Talent Services. Each Talent will report directly to the Customer Contact and will provide the Talent Services in accordance with Customer Contact’s reasonable and lawful instructions. Customer Contact is responsible for setting, reviewing, and monitoring schedules, work output, and the other aspects of each project and for coordinating the same with Talent. If Talent is tasked with billing, invoicing, or other payment activities on Customer’s behalf, Customer agrees that it is solely responsible for the direction and control of Talent in performing these duties. Customer will take all necessary steps to verify Talent’s work and assumes all risk associated therewith to the fullest extent permitted by law.
3.6 Access to Customer Accounts. Customer acknowledges that Talent will be granted access to several of Customer’s accounts, in Customer’s sole discretion, including but not limited to (e.g., Gmail) calendars and email accounts ("Customer Accounts") in order to provide Talent Services. Double is not liable for any unauthorized access, misuse of information or breaches associated with Talent access to Customer Accounts, unless (i) as a result of Double’s screening and background check processes or otherwise, Double was aware of an issue with Talent that gave rise to the unauthorized access or breach, and (ii) Double failed to notify Customer of such issues.
4. License to Double Platform
4.1 License Grant. Subject to Customer’s compliance with this Agreement, Double hereby grants Customer a time-limited, nonexclusive, non-transferable, non-sublicensable right to access and use the Double Platform solely for its internal business purposes.
4.2 License Restrictions. The license granted hereunder is subject to the following restrictions ("License Restrictions"). Customer will not directly or indirectly: (i) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying Double Platform; (ii) attempt to probe, scan or test the vulnerability of Double Platform, breach the security or authentication measures of Double Platform without proper authorization or willfully render any part of Double Platform unusable; (iii) use or access Double Platform to develop a product or service that is competitive with Double’s products and services or Double Platform or engage in competitive analysis or benchmarking; or (iv) otherwise use Double Platform outside the scope expressly permitted under the Agreement. Customer must take all necessary measures to protect, and to ensure that persons working under its authority, including any Customer Contact, protect, Double's intellectual property rights.
5. Modifications
5.1 Modifications to this Agreement. Double reserves the right to modify the terms and conditions of this Agreement and the Company Policies at any time, effective thirty (30) days after posting of an updated version. Customer should review this Agreement and the Company Policies regularly. The continued use of the Services by Customer after the date any such changes become effective constitutes Customer’s agreement to such changes.
5.2 Modifications to the Double Platform. Double reserves the right to modify or discontinue the Services (or any portion thereof) at any time; provided however, that Double will not materially decrease the overall functionality of the Services. This includes the right to add or remove features or functionality or to cease to support any individual component of the Services in Double’s sole discretion. Customer understands and agrees that Double will not have any liability to Customer for the foregoing actions. If Customer objects to any such changes, Customer’s sole recourse is to stop using the Services. Continued use of the Services after the date any such changes take effect constitutes Customer’s agreement to such changes.
6. Non-Solicitation of Talent
6.1 No Solicitation. During the term of the Agreement and for twelve (12) months thereafter (“Restricted Period”), Customer will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services any Talent of Double who Customer becomes aware of in connection with the Agreement, without Double’s prior written approval; provided however, that the foregoing provision will not prevent Customer from (i) conducting broad recruitment efforts not specifically directed at Talent or (ii) employing any Talent who contacts Customer in response solely to such recruitment efforts, without any direct or indirect solicitation by or encouragement from Customer. Customer also agrees to not induce any such Talent to recruit or refer talent of any kind to Customer or third parties nor will Customer cooperate with any efforts of such Talent to do the same.
6.2 Permanent Hire; Placements. Notwithstanding the foregoing, Double, may, from time to time, and in its sole and absolute discretion enter into recruiting agreements with Customers which allow for the permanent hire or placement of Talent, subject to a fee equivalent to 30% of the yearly base salary or one year contract equivalent which Customer offers to the Talent, unless otherwise agreed by Double. The decision to enter into a recruiting agreement or to modify or waive the fee in one instance does not obligate Double to do so in the future in similar instances or under any other circumstances. If, during the Restricted Period, Customer wishes to hire or engage for performance of services any Talent of Double who Customer becomes aware of in connection with the Agreement, Customer may contact support@withdouble.com to discuss the possibility.
7. Fees
7.1 Fees for Services. Customer shall pay to Double the amount for the specific Double Package to which Customer has chosen to subscribe at the then-applicable rates published at https://withdouble.com/pricing, at the time Customer first subscribes, subject to any additional pricing terms, discounts, or credits agreed to by the Parties in an applicable Double Order Form. Except as otherwise specified herein: (i) Fees are quoted and payable in United States dollars; (ii) payment obligations are non-cancelable and non-pro-ratable for partial months: and (iii) Fees paid are non-refundable. Customer must provide Double a credit card or other payment instrument. Customer represents and warrants to Double that such information is true, and that Customer is authorized to use the payment instrument. Customer will promptly update its account information with any changes (for example, a change in its billing address or credit card expiration date) that may occur. Customer hereby authorizes Double to bill the payment instrument in advance on a periodic basis in accordance with the terms of the applicable Double Package until Customer terminates its account. Customer further agrees to pay any charges so incurred.
7.2 Discounts; Credits. At any time, and for any reason, including in exchange for Customer entering into a Double Order Form with a fixed Commitment Term, Double may provide discounts, credits, or preferential rates for its Services (“Credits”). The amount and form of such credits, and the decision to provide them are at the sole and absolute discretion of Double. The provision of “Credits” in one instance does not entitle Customer to Credits in the future for similar instances, nor does it obligate Double to provide Credits in the future under any circumstances.
7.3 Price Changes. Unless stated otherwise in an applicable Double Order Form, Double reserves the right to change Double’s prices. If Double does change prices, Double will provide notice of the change through, at Double’s option, the “Account” page, Double’s mobile application or in email to Customer at least thirty (30) days before the change is to take effect and Client shall have the right to either consent to the change or to terminate this Agreement prior to the change becoming effective. Customer’s continued use of the Double Platform after the price change becomes effective constitutes Customer’s agreement to pay the changed amount.
7.4 Invoices. Double may choose to bill for the selected Double Package through an invoice, which may be invoiced monthly or annually, as agreed to by the Parties. Customer accepts that Double may issue invoices electronically. Customer acknowledges and accepts that it is responsible for the appropriate storage of the electronic invoices and for the fulfilment of all other legal requirements with respect to receiving electronic invoices.
7.5 Disputes. Any dispute regarding a charge or an invoice must be lodged with Double in writing via email at support@withdouble.com, with confirmation of receipt, within fifteen (15) days following the end of the payment instrument billing cycle. Once this period has expired, the charge or invoice will be deemed to have been accepted in full by Customer.
7.6 Late Payments; Chargebacks. Unpaid and undisputed invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If Double does not receive payment from Customer due to a charge being declined, charged back, or otherwise reversed, Customer’s account shall be deemed to be in Default. Upon Double’s written notice to Customer (email is sufficient), Customer has seven (7) days to cure the Default. If the Default remains uncured after seven (7) days, Double may, without liability immediately suspend Customer’s right to access or use any portion or all of the Services. Double may, but is under no obligation to, defer any suspension or other remedies described above given active progress by Customer to rectify the issue.
7.7 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Double. Customer will not withhold any taxes from any amounts due to Double.
8. Confidentiality and Intellectual Property Rights
8.1 Confidentiality. Each Party (“Recipient”) agrees that it will use the Confidential Information of the other Party (“Discloser”) solely in accordance with the provisions of the Agreement in order to perform its obligations hereunder and Recipient will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without Discloser’s prior written consent, except as otherwise permitted hereunder. Recipient may disclose Confidential Information (i) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (ii) as required by law (in which case Recipient will provide the Discloser with prior written notification thereof, the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither Party will disclose the terms of the Agreement to any third party, except that either Party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Recipient will exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 8.1 (Confidentiality) or the License Restrictions, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the Agreement.
8.2 Intellectual Property Rights. Subject only to the licenses expressly granted in Section 4.1 (License Grant), above, as between Double and Customer, Double is the sole owner(s) of all intellectual property rights in and to Double Platform. Customer will not remove any copyright, trademark or other proprietary notices of Double or any third party contained on or in the Double Platform or any other materials delivered to Customer, and Customer will reproduce all such notices on all permitted copies made by Customer under this Agreement. Double may use all suggestions, feedback, improvements, report formats or the like that Customer provides to Double or otherwise makes with respect to the Services without any obligation to Customer.
8.3 Rights in Output of Talent Services. Double does not claim any right, title, or interest in and to (i) Customer Data, (ii) Customer Confidential Information, and (iii) any and all inventions, works of authorship, designations, designs, know-how, ideas, information, deliverables, or output made, conceived, or reduced to practice in connection with the Talent Services (collectively, “Outputs”). Customer may elect to enter into an intellectual property assignment or license agreement directly with Talent in a form that is reasonably satisfactory to Talent.
8.4 Performance Metrics. Customer agrees that Double has the right to monitor, collect, and analyze statistical and performance information based on and/or relating to Customer’s use of the Double Platform, and is free (during and after the term hereof) to (i) use such data and other information to improve Double’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
9. Privacy
9.1 Privacy Notice. The Double Privacy Notice is hereby incorporated into and forms an integral part of this Agreement.
9.2 Data Processing Addendum. To the extent that, as part of the Services, Double processes personal information on Customer’s behalf, the terms of the Double Data Processing Addendum, which is incorporated into and forms an integral part of this Agreement, will apply to such processing.
10. Warranties and Disclaimers
10.1 Mutual Warranties. Each Party hereby represents and warrants to the other as follows: (i) it has the authority to enter into this Agreement and to bind such Party to this Agreement, and that this Agreement constitutes the legal, valid, binding and enforceable agreement of such Party; and (ii) execution and performance of this Agreement (a) does not breach any agreement of such Party with another third party, or any duty arising in law or equity, (b) does not violate any law, rule, or regulation applicable to such Party, and (c) is within such Party’s powers.
10.2 Double Warranties. Double warrants that (i) it will, consistent with prevailing industry standards, maintain the Double Platform in a professional and workmanlike manner and (ii) the Double Platform will comply with this Agreement in all material respects. Customer's sole and exclusive remedy for breach of the foregoing express warranty, is for Double to address the deficiencies in the Double Platform within a reasonable period of time. If Double cannot address the deficiencies, Customer may terminate the Agreement and recover a pro-rata portion of the fees paid to Double for the time period Double Platform was deficient.
10.3 Customer Warranties. Customer warrants that (i) it has all rights necessary to provide any Customer Data and to permit Double to use the same as contemplated hereunder; and (ii) Customer Data and Customer’s other activities in connection with the Double Platform, and Double’s exercise of all rights and licenses granted by Customer herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Customer Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
11 DISCLAIMERS
11.1 General Disclaimer. TO THE EXTENT THAT THE SERVICES IS DEPENDENT UPON OR USES THE INTERNET OR CUSTOMER’S INTERNAL COMPUTER NETWORK, CUSTOMER ACKNOWLEDGES THAT DOUBLE HAS NO CONTROL OVER THE INTERNET OR CUSTOMER’S INTERNAL COMPUTER NETWORK, MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PERFORMANCE OF THE INTERNET OR CUSTOMER’S INTERNAL COMPUTER NETWORK AND HAS NO LIABILITY WHATSOEVER FOR CUSTOMER’S INABILITY TO USE THE SERVICES PROVIDED HEREUNDER AS A RESULT OF THE FAILURE OF OR INOPERABILITY OF THE INTERNET OR CUSTOMER’S INTERNAL COMPUTER NETWORK.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, DOUBLE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DOUBLE MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (II) THE DOUBLE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DOUBLE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE DOUBLE PLATFORM OR THE TALENT SERVICES WILL MEET CUSTOMER’S EXPECTATIONS.
11.2 Talent Services. CUSTOMER ACKNOWLEDGES AND AGREES THAT DOUBLE DOES NOT WARRANT OR GUARNATEE THE QUALITY OF THE TALENT SERVICES OR THAT A TALENT WILL MEET ANY DEADLINES SET BY CUSTOMER, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY PARTICULAR TALENT MEETS CUSTOMER’S NEEDS AND EXPECTATIONS.
12. Third-Party Distribution Channels
Double offers software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If Customer obtains such software through a Distribution Channel, Customer may be subject to additional terms of the Distribution Channel. This Agreement is between Customer and Double only, and not with the Distribution Channel. To the extent that Customer utilizes any other third-party products and services in connection with Customer’s use of the Double Platform, Customer agrees to comply with all applicable terms of any agreement for such third-party products and services. With respect to software that is made available for Customer’s use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
a. Double and Customer acknowledge that this Agreement is concluded between Double and Customer only, and not with Apple Inc. (“Apple”), and that as between Double and Apple, Double, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
b. Customer may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
c. Customer’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that Customer owns or controls, as permitted by the usage rules set forth in the App Store Terms of Service.
d. Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
e. Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to Customer, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Double’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
f. Double and Customer acknowledge that Double, not Apple, is responsible for addressing any claims of Customer or any third party relating to the Apple-Enabled Software or Customer’s possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
g. In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Double and Apple, Double, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
h. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
i. If Customer has any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Double as follows: privacy@withdouble.com, 228 Park Ave S., PMB 61667, New York, NY 10003.
j. Double and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement with respect to the Apple-Enabled Software, and that, upon Customer’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
13. Indemnification
13.1 Indemnification by Double. Double will defend, indemnify, and hold harmless Customer against any claim, demand, suit, or proceeding ("Claim") brought against Customer by a third party arising out of: (i) acts or omissions by Talent of which (a) Double was aware as a result of Double’s screening and background checks, processes, or otherwise, and (b) Double failed to notify Customer; and (ii) an allegation that the use of the Double Platform as permitted hereunder infringes or misappropriates any intellectual property rights, including without limitation patent, copyright, trademark, trade secret, or publicity rights. Double will indemnify Customer for any damages finally awarded against (or any settlement approved by Double) Customer in connection with any such Claim; provided that (x) Customer promptly notifies Double of such Claim, (y) Customer tenders sole and exclusive authority to defend and/or settle any such Claim to Double (provided that Double may not settle any Claim unless it unconditionally releases Customer of all related liability without Customer's prior written consent, which will not be unreasonably withheld) and (z) Customer reasonably cooperates with Double in connection therewith.
If the use of Double Platform by Customer has become, or in Double’ opinion is likely to become, the subject of any claim of infringement, Double may at its option and expense, and as Customer’s sole and exclusive remedy under this Section 13.1 (Indemnification by Double): (i) procure for Customer the right to continue using and receiving the Double Platform as set forth hereunder; (ii) replace or modify the Double Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable engagement period. Double will have no liability or obligation with respect to any Claim to the extent such Claim is caused by: (A) Double’s compliance with guidelines, plans or specifications provided by Customer; (B) Customer’s use of the Double Platform not in accordance with the Agreement or as directed or approved by Double; (C) modification of the Double Platform by or on behalf of the Customer without Double’ express consent; (D) Customer Data, unless the Claim is caused by Double’s or a Party acting on behalf of Double’s use of the Customer Data in a manner not expressly permitted by the Agreement or as directed or approved by Customer; (E) the combination, operation or use of the Double Platform by the Customer with other applications, portions of applications, product(s) or services where the Double Platform would not by itself be infringing or (F) acts or omissions by Customer (clauses (A) through (F), "Excluded Claims"). This section states Double’s sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
13.2 Indemnification by Customer. Customer will defend Double against any Claim made or brought against Double by a third party arising out of: (i) Customer’s breach of its representations and warranties in this Agreement; (ii) Customer’s violation of applicable laws; (iii) Customer’s gross negligence or willful misconduct; and (iv) Excluded Claims, and Customer will indemnify Double for any damages finally awarded against (or any approved settlement) Double in connection with any such Claim; provided that (a) Double will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Double’ prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Double of all liability) and (c) Double reasonably cooperates with Customer in connection therewith.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER'S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. DOUBLE’S LIABILITY FOR ANY MATTER WILL BE LIMITED TO THE TOTAL AMOUNT RECEIVED BY DOUBLE DURING THE LAST 12 CONSECUTIVE MONTH PERIOD.
15. Term and Termination
15.1 Term. The initial term of this Agreement shall be for thirty (30) days (the “Initial Term”), unless otherwise specified in a Double Order Form entered into by the Parties. The Agreement shall be automatically renewed for additional periods of the same duration as the Initial Term (“Renewal Term”, and collectively with the Initial Term, the “Term”), unless either Party provides notice of non-renewal as set forth in Section
15.2 Notice of Non-Renewal; Termination for Convenience. If Customer provides written notice of non-renewal within the first ten (10) days of a calendar month, Customer’s subscription will terminate immediately and Customer will be charged a pro-rated amount for Services provided from the beginning of the then-current Term to the date of the notice of non-renewal. If Customer provides notice of non-renewal after the first ten (10) days of the calendar month have passed, Customer will be charged the full Fees applicable to the then-current Term. Customer will retain access to the Services until the last day of the calendar month at which time Customer’s subscription will terminate. Double may terminate this Agreement for convenience by providing written notice of termination to Customer at least thirty (30) days prior to the end of the then-current Term.
15.3 Termination for Cause. In addition to any other remedies it may have, either Party may terminate the Agreement upon thirty (30) days prior written notice (ten (10) days in the case of nonpayment), in the event of a default by the other Party that the other Party fails to cure within such notice period. A “Default” means a (i) material breach of this Agreement or applicable laws or regulations; (ii) non-payment of Fees owed; (iii) the filing of bankruptcy, receivership, or similar proceedings due to insolvency (voluntarily or involuntarily), of the other Party (iv) dissolution, liquidation, or other discontinuation of a significant part of the other Party’s business operations or the threat to cease to carry on a significant part of its business operations; or (v) a material adverse change in the other Party’s financial condition or failure to meet any of its obligations when due.
15.4 Suspension. In addition to any other remedies it may have, Double may suspend Customer’s right to access or use any portion or all of the Services immediately until such time as the condition triggering such suspension is, as determined in Double’s sole discretion, resolved, if Customer’s use of the Double Platform or any portion of the Services would reasonably be expected to (i) pose a security risk to the Double Platform or any third party; (ii) adversely impact Double’s systems, the Double Platform, or the systems or Customer Data of Double’s other customers and end users; (iii) subject Double or any third party to liability; or (iv) could be fraudulent or illegal. Double will not have any liability for any losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of such suspension.
15.5 Effect of Suspension or Termination. If, at any time, this Agreement (or any portion hereof) or Customer’s right to access or use any portion or all of the Services is suspended or terminated for any reason, you agree to pay all Fees in full for the Services up to and including the last day on which the Services are provided and you will not be entitled to a refund of any amounts paid, to the fullest extent permitted by law, unless expressly stated otherwise in an applicable Double Order Form. Upon termination (other than termination by Double for cause), Double will make all Customer Data available to Customer; provided, however Customer will not otherwise be able to utilize the Services.
16. General
16.1 Export Compliance. Each Party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Double Platform.
16.2 Publicity. Double may not use Customer's name or trademarks in its marketing materials, website, or any other publicity (e.g., press releases, Customer references and case studies) without Customer's prior written consent (which may be given by email).
16.3 Assignment; Delegation. Neither Party hereto may assign or otherwise transfer the Agreement, in whole or in part, without the other Party’s prior written consent, except that either Party may assign the Agreement without consent to a successor to all or substantially all of its assets or business related to the Agreement. Any attempted assignment, delegation, or transfer by either Party in violation hereof will be null and void. Subject to the foregoing, the Agreement will be binding on the parties and their successors and assigns.
16.4 Waiver. Failure or delay by either Party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision.
16.5 Relationship of the Parties. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
16.6 Unenforceability. If a court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect and bind the parties according to its terms.
16.7 Governing Law. The Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
16.8 Survival. Upon termination of the Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
16.9 Notices. Any notice required or permitted to be given hereunder will be given in writing and will be deemed to have been served forty-eight (48) hours after dispatch if sent by post or at the time of transmission if sent by email. In the event that the last contact information you provided to Double is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Double’s dispatch of the notice will constitute effective notice. You agree that these terms (including all updates thereto), agreements, notices, disclosures, and other communications that we may provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
16.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), epidemic or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
16.11 Entire Agreement. The Agreement, together with any other documents incorporated herein by reference and all related order forms, comprises the entire agreement between Customer and Double with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Double, its agents or employees will create a warranty or in any way increase the scope of the warranties in the Agreement. Notwithstanding the foregoing, in the event of any inconsistency between this Agreement and the Data Processing Addendum, the Data Processing Addendum controls and governs over this Agreement to the extent necessary to resolve the conflict or inconsistency.