General Terms and Conditions - August 2021
Last Revised on 12/28/2018. Changed and published on 09/13/2021.
DOUBLE ATELIER, INC., a Delaware Corporation
20 Jay St, Suite 1002, Brooklyn, NY 11201, USA
Please read these terms and conditions relating to DOUBLE ATELIER, INC., a Delaware Corporation ("Double") Services carefully. By subscribing to and using the Double Platform, Customer agrees to and accept all of the terms and conditions set herein, to the exclusion of any general or special conditions communicated by Customer. These General Terms and Conditions constitute the overall framework for the contractual relationship between Double and its customers with regard to the provision of the Services (the "Agreement"). The Agreement shall apply to all Double’s customers ("Customer"), including both natural and legal persons. If you are accepting these terms and conditions 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.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE THE CUSTOMER TO SUBMIT CLAIMS THE CUSTOMER HAS AGAINST DOUBLE TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) THE 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) THE CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
The following terms, when used in the Agreement, shall have the following meanings unless the context requires otherwise, and where the context so requires or admits, the singular shall include the plural and vice versa. Any reference under the Agreement to "including" or "include" shall be deemed to be followed by the words "without limitation".
"Affiliates" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.
"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. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
"Customer Contact" means an employee or contractor designated by the Customer to be Talent’s primary point of contact with the Customer.
"Double Package" mea ns a package of Services selected by Customer that sets the scope, term (engagement period), and pricing of any Services, which is made available to the Customer by Double and which is accepted, by any electronic means (including click-to-accept process and email) by the Customer for the Services to be purchased from, licensed or provided by Double, under the Agreement, unless otherwise agreed between the Parties.
"Double Platform" means Double’s mobile and web applications for communicating with and directing executive assistants, which may include Talent, the duties of which would be detailed in the Double Package selected by Customer and associated documentation.
"Required Material" shall mean virtual or physical devices, 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) meeting the minimum requirements set forth in the documentation in order to use the Double Platform.
"Services" means the products and services of Double, as these may change from time to time, and which may include access to the Double Platform and/or the Talent Services, as set forth in the Double Package to which the Customer has subscribed.
"Talent" means one or more select independent contractor(s) specializing in providing administrative assistance and/or other professional services to the Customer.
"Talent Services" means administrative assistance or other professional services from one or more Talent(s) in Double’s network through the Double Platform, the scope of which might be detailed in the Double Package.
2. Your Access to the Services
2.1 Customer profile
As a condition of Customer’s access to and use of the Services, the Customer agrees that a profile will be created by Double and that such profile be made available to Double (including its Affiliates) and Talents notably via the Double Platform. Activation of, access to, and use of the Services may be subject to Double's prior approval. Customers under 13 years of age may not use the Service, with or without registering. In addition, Customers under 18 years of age may only use the Service, with or without registering, with the approval of a parent or guardian.
2.2 Communication of Required Information and Documents
The subscription may be subject to the submission by the Customer of information and documents requested by Double. The Customer guarantees that all information and documents provided to Double as part of the subscription process, and subsequently, are and will be current, true, accurate, supportable and complete. The Customer accepts that Double bears no liability regarding the verification of the information and the documents as provided by the Customer (or by any other customer). The Customer will notify Double immediately of any change to any information that it has provided.
3. Double Platform
3.1 Provision of Double Platform
As part of the Services and subject to the Customer’s compliance with the terms and conditions of the Agreement, Double will provide the Customer with a limited, nonexclusive, non-transferable, non-sublicensable right to access and use the Double Platform for its internal business purposes.
3.2 Required Material
The Customer is solely responsible and liable for the choice, purchase, installation and operation of the required material, and for costs related thereto. The Customer is solely responsible and liable for installing and keeping up to date any security-related aspect of the Required Material (including patches, firewalls, virus, spyware, malware and other malicious codes scanners). Double reserves the right to specify and/or modify at any time the requirements with which the Customer’s Required Material must comply. Double will notify the Customer of such changes, either through the Services user interface, in an email notification or through other reasonable means. Double cannot be held liable for any insecurity or damages caused by the Required Material or any material or equipment used by Customer to use the Services.
3.3 Internet Connectivity
As the Services are made accessible through the Internet, a secure internet and network environment is a prerequisite for using the Services. Double shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with any unavailability of the Services relating to Internet connectivity.
3.4 Means of Access
The Customer is responsible for the safeguarding, confidentiality, security and appropriate use of the means of access and shall take all steps to prevent any unauthorized third party from gaining knowledge and making use thereof. In the event of loss, theft, breach of confidentiality, or any risk of misuse of means of access, the Customer must immediately inform Double in writing. The Customer is fully responsible for any unauthorized use of its means of access and/or Customer profile on the Double Platform, as well as for any detrimental consequences that may arise directly or indirectly therefrom. Double will not be liable for any loss or damage arising from the Customer’s failure to comply with this Section.
3.5 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 the data uploaded by or on behalf of the Customer to the Double Platform ("Customer Data"); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
3.6 License Restrictions
The rights granted herein are subject to the following restrictions (the "License Restrictions"). The Customer will not directly or indirectly:
(a) 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 the Double Platform;
(b) attempt to probe, scan or test the vulnerability of the Double Platform, breach the security or authentication measures of the Double Platform without proper authorization or willfully render any part of the Double Platform unusable;
(c) use or access the 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;
(d) otherwise use the Double Platform outside the scope expressly permitted under the Agreement.
The Customer must take all necessary measures to protect and ensure that persons working under its authority, including any Customer Contact, protect Double's intellectual property rights.
4. Talent Services
4.1 Access to Talent Services
Double may provide administrative assistance or other professional services from one or more Talent(s) in Double’s network through the Double Platform. The Customer will need to select a Double Package including Talent Services at registration, through the “Account” page, or through Double’s mobile application to receive access to the Talent Services.
4.2 Talent Availability and Access
As part of the Services, the Customer may opt for Talent Services. Double will use commercially reasonable efforts to make one or more Talent available to perform the Talent Services during the term of the Agreement. The Customer acknowledges that Talent will be granted access to several of the Customer’s accounts, including but not limited to (e.g. Gmail) calendars and email accounts ("Customer Accounts") in order to provide the Talent Services. Double will not be liable for any unauthorized access or breaches associated with Talent access to the Customer Accounts.
4.3 Customer Cooperation
The Customer understands that performance of Talent Services depends in part on the Customer's actions. Accordingly, Customer will use commercially reasonable efforts to provide Double and its Talent with reasonable information, cooperation, and assistance in connection with the Talent Services. Each Talent will report directly to the designated Customer Contact and will provide the Talent Services in accordance with the Customer Contact’s reasonable and lawful instructions. The Customer Contact will be responsible for setting, reviewing, and monitoring schedules, work output, and the other aspects of each project under an Order Form and for coordinating the same with the relevant Talent.
5. Non-Solicitation of Talent
During the term of the Agreement and for twelve (12) months thereafter, the Customer will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services (excluding the Services hereunder) any Talent of Double who the Customer becomes aware of in connection with the Agreement. The Customer also agrees to not induce any such Talent to recruit or refer talent of any kind to the Customer or third parties nor will the Customer cooperate with any efforts of such Talent to do the same.
6.1 Fees for the Services
To the extent the Double Platform or any portion thereof is made available for any fee, the Customer must select a payment plan and provide Double information regarding a credit card or other payment instrument. The Customer represents and warrants to Double that such information is true and that the Customer is authorized to use the payment instrument. The 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. The Customer agrees to pay Double the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms and Conditions. The Customer hereby authorizes Double to bill the payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until the Customer terminates its account, and the Customer further agree to pay any charges so incurred. Double reserves the right to change Double’s prices. If Double does change prices, Double will provide notice of the change on the Site or in email to the Customer, at Double’s option, at least 30 days before the change is to take effect. The Customer’s continued use of the Double Platform or the Services after the price change becomes effective constitutes the Customer’s agreement to pay the changed amount.
6.2 Fees for Talent Services
The Customer will pay Double the fees specified in the selected Double Package. Except as otherwise specified herein, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
Double may choose to bill for Services through an invoice, which may be invoiced monthly or annually, as defined at the discretion of Double. The 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. Unpaid 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.
6.4 Late Payment
Double may suspend access to the Double Platform immediately upon notice if the Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
All amounts payable hereunder are exclusive of any sales, use and other taxes or duties,however designated (collectively "Taxes"). The Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Double. The Customer will not withhold any taxes from any amounts due to Double.
Any dispute regarding a charge or complaint regarding an invoice must be lodged with Double in writing by registered letter within 15 (fifteen) days of the payment instrument being Commented If you plan to autobill on a credit card, there is specific language that needs to be included in the sign-up flow process. Examples of such language should have been provided with this draft. Commented Is this timing/process OK with you? charged or the invoice being received. Once this period has expired, the dispute will be considered as inadmissible and the charge or invoice will be deemed to have been accepted irrevocably and in full by Customer.
7. Proprietary Rights and Confidentiality
7.1 Proprietary and Intellectual Property Rights
Intellectual property rights, titles and interests in and to Services, including the Double Platform, the related documentation and Doubles’ Confidential Information associated with the Services belong exclusively to Double and/or its licensors. The Customer exclusively owns all rights, titles and interests in and to Customer Data and the Customer Confidential Information.
The Customer may from time to time provide Double suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Double Platform. Double will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Double will have the full, unencumbered right, without any obligation to compensate or reimburse the Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of the Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) 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 the Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with 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. Each party agrees to 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 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.
7.4 Performance Metrics
The Customer agrees that Double has the right to aggregate, collect and analyze data and other information relating to the performance of the Double Platform and the Services, and shall be 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 the Customer or any individual.
8.1 Privacy Terms
8.2 Processing of Personal Data by Double as Data Controller
8.3 Processing of Personal Data by Double as Data Processor
Whenever Double processes personal data on behalf of the Customer, Double will:
(a) Process that personal data only on the documented instructions of the Customer (including the instructions set out in this Agreement) unless Double is required by the Data Protection Legislation to otherwise process that Personal Data;
(b) Ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) Ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) Transfer personal data outside of the European Economic Area with appropriate safeguards in relation to such the transfer and ensure that the data subject has enforceable rights and effective legal remedies;
(e) Assist the Customer, in responding to any request from a data subject and in ensuring compliance with the Customer's obligations under the Data Protection Legislation, where needed, with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) Notify the Customer without undue delay on becoming aware of a personal data breach (as defined in the Data Protection Legislation);
(g) At the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by applicable law to store the personal data; and
(h) Maintain complete and accurate records and information to demonstrate its compliance with this Section 9.3 and allow for audits by the Customer or the Customer's designated auditor.
8.4 Processing of Personal Data by the Customer
The Customer further acknowledges that it is inherent to the Services that the Customer collects and processes personal data and he/it shall be qualified in this regard as a data controller and/or data processor. In this respect, the Customer warrants that he/it complies and shall comply with the Data Protection Legislation applicable to the Customer and, if the Customer processes personal data as a data processor, that Customer has complied with all instructions from the data controller of such personal data.
9. Warranties and Disclaimers
9.1 Double Platform
Double warrants that (a) it will, consistent with prevailing industry standards, maintain the Double Platform in a professional and workmanlike manner and (b) the Double Platform will comply with this agreement in all material respects. For breach of the foregoing express warranty, the Customer's exclusive remedy shall be the re-performance of the deficient Services, if Double cannot re-perform such deficient Services as warranted, the Customer shall be entitled to terminate the Agreement and recover a pro-rata portion of the fees paid to Double for such deficient Services.
9.2 Talent Services
Double shall use commercially reasonable efforts to run background checks and otherwise vet its Talent. However, the Customer acknowledges and agrees that Double does not warrant or guarantee the quality of the Talent Services of any Talent, or that a Talent will meet any deadlines set by the Customer, and the Customer will be solely responsible for determining whether any particular Talent meets the Customer's needs and expectations.
The Customer warrants that (i) has full power and authority to enter into the Agreement; (ii) the Customer has all rights necessary to provide any information, data or other materials that the Customer provides hereunder (“Customer Content”) and to permit Double to use the same as contemplated hereunder; the Customer Content and the Customer’s other activities in connection with the Services, and Double’s exercise of all rights and license granted by the 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 the Customer Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
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. DOUBLE MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE CUSTOMER THROUGH THE SERVICE WILL MEET THE CUSTOMER’S EXPECTATIONS.
10. 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 the Customer obtains such Software through a Distribution Channel, the Customer may be subject to additional terms of the Distribution Channel. These Terms and Conditions are between the Customer and Double only, and not with the Distribution Channel. To the extent that the Customer utilizes any other third party products and services in connection with the Customer’s use of our Services, the 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 the 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 these Terms of Service, the following terms and conditions apply:
a. Double and the Customer acknowledge that these Terms of Service are concluded between Double and the 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. The 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. The 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 the 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, the Customer may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to the 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 the Customer acknowledge that Double, not Apple, is responsible for addressing any claims of the Customer or any third party relating to the Apple-Enabled Software or the 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. The Customer represents and warrants that (i) the 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) the Customer is not listed on any U.S. Government list of prohibited or restricted parties.
i. If the Customer has any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Double as follows:
email@example.com 20 Jay St, Suite 1002, Brooklyn NY 11201
j. Double and the Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon the Customer’s acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against the Customer with respect to the Apple-Enabled Software as a third party beneficiary thereof.
11.1 Indemnity by Double
Double will defend the Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against the Customer by a third party alleging that the use of the Double Platform as permitted hereunder infringes or misappropriates a patent, copyright or trade secret and will indemnify the Customer for any damages finally awarded against (or any settlement approved by Double) the Customer in connection with any such Claim; provided that (a) the Customer will promptly notify Double of such Claim, (b) Double will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Double may not settle any Claim without the Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases the Customer of all related liability) and (c) the Customer reasonably cooperates with Double in connection therewith. If the use of the Double Platform by the 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 (i) procure for the 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 if such Claim is caused in whole or in part by (A) compliance with guidelines, plans or specifications provided by the Customer; (B) use of the Double Platform by the Customer not in accordance with the Agreement; (C) modification of the Double Platform by any party other than Double without Double’ express consent; (D) Customer Data (E) the combination, operation or use of the Double Platform 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 the Customer (clauses (A) through (F), "Excluded Claims"). This Section states Double’s sole and exclusive liability and obligation, and the Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
11.2 Indemnification by the Customer
The Customer will defend Double against any Claim made or brought against Double by a third party arising out of: (i) the Customer’s breach of the Agreement; (ii) Customer’s violation of applicable laws; (iii) Customer’s negligence or willful misconduct; and (iv) Excluded Claims, and the 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 the Customer of such Claim, (b) the Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that the 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 the Customer in connection therewith.
12. 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 THE CUSTOMER'S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY THE CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
13.1 Term for Double Platform Subscribers
The term of the Agreement for Customers accessing the Double Platform will commence upon the Customer’s acceptance of this Agreement and continues in effect until terminated as set forth below.
13.2 Term for Talent Services Customers
If the Customer is seeking Talent Services, the term of the Agreement will commence on the date a Double Package is selected and continue until terminated as set forth below. A Double Package subscription will continue for the engagement period set forth therein. Except as set forth in such Double Package, the term of such Double Package will automatically renew for successive renewal terms equal to the length of the initial term of such Double Package, unless either party provides the other party with notice of non-renewal through the Double website or mobile application.
Each party may terminate the Agreement upon 30 days’ written notice to the other party. Each party may also terminate the Agreement upon written notice in the event (a) the other party commits any material breach of the Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach, or within fifteen (15) days in the event of Customer’s failure to pay any amount due under this Agreement or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. In the event of the termination or suspension of a Service, the associated licenses are also automatically and immediately, terminated or suspended. Customer undertakes and ensures that in the event of the termination of the Services, it will immediately, as applicable, cease the use of and/or return the Services, the associated documentation and all copies thereof to Double, and delete and/or destroy them.
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.
14. Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS THE CUSTOMER’S RIGHTS
14.1 Agreement to Arbitrate
This Section is referred to as the “Arbitration Agreement.” Double agrees that any and all disputes or claims that have arisen or may arise between the Customer and Double, whether arising out of or relating to this Agreement or the Program, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that the Customer may assert individual claims in small claims court, if the Customer’s claims qualify. The Customer agrees that, by agreeing to this Agreement, the Customer and Double are each waiving the right to a trial by jury or to participate in a class action. The Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
14.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
The Customer and Double agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both the Customer and Double agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
14.3 Pre-Arbitration Dispute Resolution
Double is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by emailing Double ’s support team at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Double should be sent to 20 Jay St, Suite 1002, Brooklyn NY 11201 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Double and the Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, the Customer or Double may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Double or the Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which the Customer or Double is entitled.
14.4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Double and the Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If the Customer’s claim is for $10,000 or less, Double agrees that the Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If the Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
15.1 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.
The Customer agree that Double may refer to the Customer's name and trademarks in Double’ marketing materials and website; however, Double will not use the Customer's name or trademarks in any other publicity (e.g., press releases, the Customer references and case studies) without the Customer's prior written consent (which may be by email).
15.3 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.
15.4 Amendment; Waiver
No amendment or modification to the Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. 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.
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.
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.
15.7 Governing Law
The Agreement will be governed by the laws of the State of California, 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.
Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Double must be sent to the address set forth above.
15.9 Entire Agreement
The Agreement comprises the entire agreement between the 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.
15.10 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), 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.