All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Application in any manner, and each of your heirs, assigns, and successors. If you use the Application on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
SERVICE. Digital FS LLC provides a mobile based CRM solution whereby users can manage their customer’s relationship by scheduling appointments, capturing quotes and taking payments workout through a downloadable application. This service requires voluntary participation. This service is not to be used by any individuals under 18 years old. If you become a Member, you will be able to access the Services associated with the Company product(s) for which you hold a Membership. If you meet certain requirements, the Company may in its discretion make your profile visible to Users of other Apps operated by the Company for which you do not have a Membership.
ACCOUNTS AND SECURITY. To access the Services, you must have an account. You must maintain and are responsible for, the confidentiality of your login and password. If requested, you must provide us with a form of identification to verify your identity.
You may not use our Services if:
CONDITIONS OF ACCESS.
SUBSCRIPTION FEE. Company has various levels of service that are billed on a subscription basis for the term as specified when you subscribe. When you sign up for a subscription-billing based account, you agree to allow us to bill your credit card (or other payment method) for all due charges. We will re-bill for any failed billing or past-due amounts. Subscription fees will not be prorated or refunded. We will bill you a full period’s subscription fee regardless of whether you cancel within that period. We reserve the right to revise pricing at any time; however, we will provide you with at least 30 days’ advance notice before revised terms become applicable to you (or such longer period of notice as may be required by law). We also reserve the right to offer different levels of service in alternative price plans and to impose different restrictions or levels of service in such alternative plans, including but not limited to terms related to amount or format of content, network traffic or bandwidth and number of subscribers or users.
AUTOMATIC PAYMENTS. Users have the ability to purchase a paid subscription from Company. Our subscription options are 1 month and 12 months and are automatically renewed unless canceled 24 hours prior. Your service will automatically be renewed and your chosen payment method will be charged at the end of each service period unless you decide to cancel your subscription for the Company Services. No Refunds shall be issued for subscriptions however unused time from a subscription will remain active until the end of the subscription period.
CANCELLATION OF MEMBERSHIP. You may cancel your Membership at any time. You may cancel by logging into your account on the Applications and following the links, or by writing to Customer Care at [EMAIL].
CANCELLATION OF YOUR MEMBERSHIP BY COMPANY. If we cancel a Member’s Membership for that Member’s breach of these Terms & Conditions, the Member shall not be entitled to a refund for the period remaining to elapse until the expiry of the account, without prejudice to any damages sought by us as compensation for the loss suffered.
If we cancel a Member’s Membership in its sole discretion for reasons other than that Member’s breach of these Terms & Conditions, the Member shall be entitled to a refund for the period remaining to elapse until the expiry of the account. We also reserve the right to remove any information at any time. Company may terminate this Agreement in accordance with the terms herein. Company may also immediately suspend, limit, or terminate User’s access to the Service, or terminate this Agreement, if: (i) User violates this Agreement; (ii) User violates any applicable law or regulation relating to User’s use of the Service; (iii) User engages in any conduct which Company, in its sole discretion, believes creates a security risk or is otherwise harmful to Company or others; or (iv) User breaches any other agreement with Company.
THIRD PARTY INTEGRATION. In providing the Service, Company may make available various third party tools to process payments. These are processed respectively by Apple (App Store) and Google Play Store (Android) and are subject to their respective terms and conditions. Company is not responsible for the performance of any third party services or their security of their service.
REFUNDS. We will refund you all of the subscription charges if you cancel within this time period. You will not receive a refund for items not included in the baseline monthly subscription fee (including activation fees, postcards, chargebacks, etc.). This money-back guarantee does not apply to re- enrollments after your first subscription. To cancel your service and request a refund, please email us at [EMAIL].
PAYMENT PROCESSING FEES. You agree to pay a payment processing or other transaction-related fees (“Fees”) in addition to our platform fee. We reserve the right to change our Fees at any time in our sole discretion.
ACCESS TO YOUR FUNDS. We will deposit to your bank account the amounts actually received by us for transactions submitted through the Service (less any applicable Fees). We reserve the right to revise our payout schedule. Once your US bank account information is verified, we will automatically initiate a payout to your designated bank account at the end of every business day except as provided below. Payouts to your bank account will normally register within 2-3 business days subject to your bank’s policies.
Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error in accordance with this Agreement will be deemed a waiver of any right to amounts owed to you.
RESTRICTIONS ON FUNDS. Should we need to conduct an investigation or resolve any suspicious activity or pending dispute related to your account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
CHARGEBACKS. The amount of a transaction may be reversed or charged back to your bank account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Associations (defined below), our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. There is a non-refundable $25 fee for each Chargeback regardless of the outcome of the dispute.
TAXES. You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with your use of our Service (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. If in a given calendar year you receive (i) more than $20,000 in gross amount of payments and (ii) more than 200 payments, we will report annually to the Internal Revenue Service (“IRS”), as required by law, your name, business name, address, Tax Identification Number the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
ACCOUNT HISTORY. We provide you an online transaction history of all of your authorized transactions. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your account and your use of the Service and (b) reconciling all transactional information that is associated with your account.
ACCOUNT REVIEWS. We review account and transaction activity at various times, including when bank transfers are initiated. This review checks for, among other things, suspicious or illegal activity, and whether your account activity and the activity of users with whom you’ve transacted comply with this agreement. In connection with our review process, you may be required to provide us with additional information and/or documentation to verify your identity. We may limit your account and your access to money in it or that is sent to you until verification is completed.
CHANGES. The Company may update and amend these Terms & Conditions at any time and the Company will make the updated Terms & Conditions available through the Services. You understand and agree that you will be deemed to have accepted the updated Terms & Conditions if you use the Services after the updated Terms & Conditions are made available to you. If at any point you do not agree to any part of the Terms & Conditions in operation, you should immediately stop using the Services.
LICENSE to USE AND INSTALL. Subject to the terms and conditions of this Agreement and for the sole purpose of using the Services, the Company hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to:
USER CODE OF CONDUCT. In using the Services, you must behave in a civil and respectful manner at all times. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense. Certain uses of our Service our inconsistent with our mission to improve the experience. The following activities are prohibited:
INTELLECTUAL PROPERTY OWNERSHIP. The Application, and the media and materials contained in the Application, including all intellectual property rights in the Application, are the sole and exclusive property of Digital FS LLC and its licensors. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Digital FS LLC in these Terms are expressly reserved.
DISCLAIMER OF WARRANTIES. You understand and agree that your use of the Application and/or the Services is at your sole risk. The Application and the Services are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied (to the maximum extent permitted by applicable law). To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from Program of dealing or usage of trade.
The Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the Application and/or the Products. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the Company expressly disclaims all warranties and conditions to the maximum extent permitted by applicable law. We make no warranty whatsoever with respect to the services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, Course of dealing, Course of performance, usage of trade or otherwise.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL , THE COMPANY, ITS SUBSIDIARIES OR HOLDING COMPANY, ANY SUBSIDIARY OF ANY SUCH HOLDING COMPANY, AFFILIATES, SUCCESSORS, ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, WHETHER INDIVIDUALLY OR COLLECTIVELY (THE “RELATED PARTIES”), BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE ARE NOT LIABLE FOR ANY DAMAGING COMMUNICATIONS OR ACTIONS TO ANY USER CAUSED BY ANOTHER USERS DURING THE USE OF THE APP. WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL ARISING OUT OF THE USE OF THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OR TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS IN THIS CLAUSE, THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF YOUR MEMBERSHIP OR SUBSCRIPTION TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN ALL CASES, THE RELATED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
THE RELEASES HEREUNDER ARE INTENDED TO APPLY TO ALL CLAIMS NOT KNOWN OR SUSPECTED TO EXIST WITH THE INTENT OF WAIVING THE EFFECT OF LAWS REQUIRING THE INTENT TO RELEASE FUTURE UNKNOWN CLAIMS.
RELEASE. IN EXCHANGE FOR THE SERVICE PROVIDED BY US AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS ACKNOWLEDGED, USER EXPRESSLY AGREES TO RELEASE COMPANY, ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT COMPANIES, PARTNERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE YOU HAVE, EXCEPT THAT THIS RELEASE DOES NOT APPLY TO CLAIMS BY YOU DIRECTLY ARISING OUT OF COMPANY PRO’S MATERIAL BREACH OF THIS AGREEMENT, OR TO THE EXTENT THE FOREGOING RELEASE IS PROHIBITED BY LAW.
FORCE MAJEURE. For the purposes of this clause, “Force Majeure Event” means any act or event beyond the reasonable control of the Company, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks. In the event of a Force Majeure Event that results in Services being unable to be provided for 14 days or more, either party may terminate this Agreement with immediate effect upon written notice to the other and neither party will have the right to claim compensation from the other. The Company will not be liable for any failure to perform or any delay in performance of, any of its obligations under these Terms & Conditions caused by a Force Majeure Event.
INDEMNIFICATION. You agree to, and you hereby, defend, indemnify, and hold the Related Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Related Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter:
You will cooperate as fully required by Related Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Related Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Related Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Related Party.
DISPUTE RESOLUTION; ARBITRATION. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH DIGITAL FS LLC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
BINDING ARBITRATION. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, you and Digital FS LLC agree (a) to waive your and Digital FS LLC’s respective rights to have any and all Disputes arising from or related to these Terms , Content or Services (including, without limitation, Third Party Purchases), resolved in a court, and (b) to waive your and Digital FS LLC’s respective rights to a jury trial. Instead, you and Digital FS LLC agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS. You and Digital FS LLC agree that any Dispute arising out of or related to these Terms, Content or Services is personal to you and Digital FS LLC and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Digital FS LLC agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Digital FS LLC agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
FEDERAL ARBITRATION ACT. You and Digital FS LLC agree that these Terms affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
NOTICE; INFORMAL DISPUTE RESOLUTION. You and Digital FS LLC agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Digital FS LLC shall be sent to:
Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Digital FS LLC account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Digital FS LLC cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Digital FS LLC may, as appropriate and in accordance with this Section, commence an arbitration proceeding or, to the extent specifically provided for or, file a claim in court.
PROCESS. EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND DIGITAL FS LLC AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR DIGITAL FS LLC WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND DIGITAL FS LLC WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and DIGITAL FS LLC agree that (a) any arbitration will occur in the State of Illinois, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Illinois and the United States, respectively, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
AUTHORITY OF ARBITRATOR. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
RULES OF JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge or agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
OPT-OUT RIGHT. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section by writing to: [ADDRESS]. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.
WAIVER OF JURY TRIAL. With the exception of your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this Section is held to be illegal, invalid or unenforceable, such provision shall be fully severable, this Section shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Section a legal, valid and enforceable provision as similar as possible to the former provision.
SURVIVAL. The provisions of these Terms of Service shall survive and continue to apply after our relationship expires or has been terminated for any reason, except where otherwise required by the context.
NO THIRD PARTY BENEFICIARIES. Except as otherwise set forth expressly herein, nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than Company, any benefit, right or remedy.
NO PARTNERSHIP. The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
WAIVER. No waiver by the Company of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
ASSIGNMENT. The Company may assign its rights under these Terms & Conditions to any person or entity without your consent. The rights granted to you under these Terms & Conditions may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
GOVERNING LAW AND VENUE. These Terms, your access to and use of the Application and your order, receipt and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, without regard to conflict of law rules or principles (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois.
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