Localbytes - Food delivery made local

By using Localbytes, you agree to the following Terms of Service:

Localbytes Terms of Use - Client

Last updated August 1, 2022

SECTION 20 BELOW ENTITLED “BINDING INDIVIDUAL ARBITRATION” CONTAINS A MANDATORY ARBITRATION PROVISION. IT AFFECTS HOW DISPUTES WITH LOCALBYTES ARE RESOLVED AND THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST LOCALBYTES TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. BY ACCEPTING THESE TERMS OF USE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE ARBITRATION PROVISION, AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.

Please read these Terms of Use (the “TOU”) carefully. We know it’s a bit long and boring, but, hey, it’s important because the following TOU is a legal agreement between you (“you,” “your”) and CloudBrands Inc (d/b/a CloudBrands) (collectively referred to herein as " CloudBrands", "us", “our”, "we", or “Company”) and governs your use of Orderbyte services, including our websites located at www.localbytes.co and www.orderbyte.com (our "Website"), mobile apps, software, other online areas owned or operated by us, and other products and services provided by us (collectively, the "Services"). By accessing and/or using any of the Services and/or Website you agree to these TOU, the Privacy Policy and any policies referenced within (“Policies”), including terms that limit our liability (see Section 16) and require individual arbitration for any potential legal dispute (see Section 19).

You also agree to any additional terms applicable to the Services and/or features that are a part of, or may from time to time, be made a part of, our Services (collectively, the “Additional Terms”). Subject to applicable law, the Additional Terms and Policies are a part of these TOU and are expressly incorporated herein by this reference. Your continued use of the Services confirms your consent to be bound by the Additional Terms and Policies. If you do not agree to any of these TOU, you must cease use of the Website or the Services.

Section 1: Overview

Localbytes is a software platform owned, built, and operated by CloudBrands Inc. Localbytes connects the best “Merchants” in the world with their amazing “Patrons.” Merchants and Patrons are both users of the Services provided by Localbytes and are hereinafter referred to collectively as "Users."

Localbytes solely provides a platform for Merchants and their Patrons to connect with each other and serves only as a medium to facilitate the provision of and payment for goods and services offered by those Merchants. Localbytes itself does not provide or serve any food, beverages, or other retail products to Patrons. Merchants and Patrons agree independently to the sale and provision of such items and services, whether through Localbytes platform or otherwise.

Localbytes is not a party to any agreement between Merchants and their Patrons. All dealings are solely between the respective parties and Localbytes makes no representations and warranties on behalf of any User (including but not limited to the cost, quality, or timeliness of any goods or services provided by any Merchant) and will have no liability for any interactions between Merchants and their Patrons.

Section 2: General Terms

By agreeing to these TOU, you represent that you are at least the age of majority in your state or province of residence.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.

A breach or violation of any of the TOU will result in an immediate termination of your Services.

We reserve the right to refuse service to anyone for any reason at any time.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these TOU.

Section 3: Localbytes Account Registration

In order to use the Service, you must create an account with us (a “Localbytes Account”). During registration we will ask you for information, including your name, email and other personal information. You must provide accurate and complete information in response to our questions and keep that information current. In order to create your Localbytes Account you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your Localbytes Account. We reserve the right to suspend or terminate the Localbytes Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

You may terminate your account and/or stop using the Service at any time. To terminate your account see your account settings. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOU). Termination of your account will not relieve you of any obligation to pay any accrued fees or charges. We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Any such termination or suspension will be made by us in our sole discretion, without any refund to you of any prepaid fees or amounts, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.

You may not assign or otherwise transfer your Localbytes Account to any other person or entity.

Section 4: Privacy

You agree to Localbytes Privacy Policy which explains how we collect, use, and protect the personal information provided to us. By using the Services, you agree that Localbytes can use such data in accordance with Localbytes Privacy Policy. Localbytes retains the right to use all data collected through the Services in accordance with Localbytes Privacy Policy and applicable law.

Additionally, you agree not to access, collect, store, retain, transfer, use or otherwise process in any manner any data provided by Localbytes, including without limitation Personal Information of any User, except as required to perform under these TOU. You shall keep all data provided by Localbytes secure from unauthorized access and maintain the accuracy and integrity of such data by using appropriate organizational, physical, and technical safeguards. If you become aware of any unauthorized access to data provided by Localbytes, you will immediately notify us and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Localbytes. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by Localbytes and will be responsible for damages resulting from your failure to comply. You will not allow any third party to use Localbytes Services without prior written consent from us. Such prohibited usage includes copying, modifying, renting, leasing, selling, distributing, reverse engineering or otherwise attempting to gain access to the source code of the Localbytes Services.

Section 5: Core Responsibilities Of The Parties

By agreeing to these TOU, you as a Merchant will:

Keep your Localbytes catalog up to date including item/modifier/variant names, descriptions, and prices;

Ensure that your menu displayed to Patrons through the Localbytes Services is available during regular business hours and that all items, variations, and modifiers displayed on the menu are current and available;

Accept all legitimate orders placed by Patrons through the Localbytes Services from your current menu;

Process all orders in the order in which they are received;

Prepare each Patron order in a timely fashion for pick-up, table delivery, or remote delivery option made available by you and as specified by the Patron;

Deliver each Patron’s order to their table or remote location if that is an option you offer your Patrons;

Validate the legal age of any Patron ordering an alcoholic beverage or other controlled substance from you through the Localbytes Services upon delivery or pickup;

Notify all Merchant staff of the relationship with Localbytes within five (5) business days of beginning operation with Localbytes and provide appropriate training on accepting, managing, and fulfilling Localbytes orders;

Appropriately address Patron requests for refunds or other corrective action within three (3) business days of such a request being received in writing;

Pay all taxes, duties, and other governmental charges on the sale of Orders received through the Localbytes Services under these TOU and remit such taxes, duties, and other governmental charges to the appropriate authorities; and,

Remit to Localbytes all Client Service Fees as mutually agreed.

In exchange, Localbytes will:

Provide you with access to a confidential and proprietary Client Dashboard through which you can manage your Localbytes catalog, menus, orders, and administrative settings;

Provide you with access to Localbytes-hosted menu data to populate your web-based online and onsite menus if that is a service you choose to purchase from Localbytes;

Accept Patron Orders on your behalf and send these to you for fulfilment through the Localbytes Client Dashboard;

Accept payment from Patrons on your behalf for all orders received including associated taxes, fees, and tips; and,

Send you final payment for all orders received including associated taxes, fees, and tips and less all refunds provided by you to Patrons and Client Service Fees as mutually agreed.

Section 6: Refunds

You are solely responsible for any Patron complaints regarding the nature, quality, and timeliness of preparation of all orders placed by Patrons through the Localbytes Services. You are also solely responsible for responding to Patron requests for refunds associated with any orders received through the Localbytes Services.

In the event that Localbytes, in its sole reasonable discretion, has to issue a refund or credit to a Patron, you agree to bear the full cost of that refund or credit, unless the refund or credit is due to the gross negligence or willful misconduct of Localbytes or directly attributable to a system outage of the Localbytes Services. Localbytes reserves the right to set-off and deduct the cost of any refund or credit from proceeds collected on your behalf for Patron orders received through the Localbytes Services and/or through a third party payment processor, selected at the sole discretion of Localbytes, by means of a credit card or ACH payment.

Section 7: Necessary Hardware

It is your responsibility to install and maintain any equipment and hardware reasonably required to fulfill your responsibilities outlined in this TOU and to access the Services. This includes, but is not limited to: supported POS terminal(s), other supported device(s) with an installed web browser capable of viewing the Localbytes Client dashboard, and/or supported printer(s) and related internet connectivity necessary to receive orders placed by Patrons through the Localbytes Services; internet-connected TV(s), monitors, or projectors if you wish to display dynamic menus powered by Localbytes.

Localbytes is not responsible for the provision or ongoing maintenance of any hardware required to access the Services outlined in the TOU.

Section 8: Payment, Fees, and Taxes

You hereby authorize Localbytes to deduct all payments, fees, and associated taxes required to access the Localbytes Services either from proceeds collected on your behalf for Patron orders received through the Localbytes Services and/or through a third party payment processor, selected at the sole discretion of Localbytes, by means of a credit card or ACH payment. Localbytes reserves the right to update these fees at any time with appropriate notification.

Section 9: Payment Processing Services

The Localbytes Services allow Patrons to pay and Merchants to accept payments through a payment service provider retained by the Company (the "PSP"). We are not a bank and we do not offer banking services as defined by the United States Department of Treasury.

Payment processing services under these TOU are provided by Square. By agreeing to these TOU, you also agree to be bound by the Square Terms of Service (https://squareup.com/us/en/legal/general/ua), as may be modified by Square from time to time. Square is the merchant of record for Localbytes and all transactions conducted through the Service. Square is responsible to your acquiring bank for all transactions taken on behalf of Localbytes and Localbytes Users.

You are responsible for providing accurate and complete information about your representative and your business including but not limited to up-to-date bank account details. You hereby authorize Localbytes to share this information and specific transaction information related to your use of the Services with Square.

Section 10: Ownership; Reports

The Services and all rights therein are and shall remain Localbytes property. All intellectual property rights in the Services shall be owned by Localbytes. Neither these TOU nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited, non-exclusive, non-sublicensable, revocable, non-transferable right to use the Services pursuant to these TOU; or (ii) to use or reference in any manner Localbytes’s company names, logos, product and service names, trademarks or services marks or those of Localbytes’s licensors.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Localbytes; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Subject to the terms and conditions of Localbytes Privacy Policy, Localbytes reserves the right to collect and use aggregate, anonymized or deidentified information about patrons and, unless otherwise required by applicable law, all such data shall be the sole property of Localbytes.

Localbytes may, from time to time, deidentify the personal information (“Deidentified Information”) that we collect from patrons as part of your use of our Services. We may combine that Deidentified Information with others’ Deidentified Information to generate reports and studies. Any such reports or studies, including the findings, materials, information, and ideas contained therein (collectively, “Reports”) are the sole and exclusive property of Localbytes. You hereby assign any rights you may have to such Reports, and the Deidentified Information contained therein, to Localbytes in perpetuity throughout the world for any and all present or future uses in any and all languages, for no compensation. All Deidentified Information will be treated as nonconfidential and nonproprietary. Localbytes shall be under no obligation of any kind with respect to such Deidentified Information and shall be free to reproduce, make derivative works from, use, disclose, and distribute the Reports to others without limitation. Additionally, Localbytes may use any ideas, concepts, know-how, or techniques contained in generating such Reports for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information.

Section 11: User Provided Content

Localbytes may permit you to submit, upload, publish or otherwise make available to Localbytes through the Services textual, audio, and/or visual content and information ("User Content"). Any User Content provided by you remains your property. However, by providing User Content to Localbytes, you grant Localbytes a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Localbytes business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Localbytes the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Localbytes use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Localbytes in its sole discretion, whether or not such material may be protected by law. Localbytes may, but shall not be obligated to, review, monitor, or remove User Content, at Localbytes sole discretion and at any time and for any reason, without notice to you.

Section 12: Transactions Involving Alcoholic Beverages

Localbytes does not sell alcoholic beverages. Localbytes is a marketing and technology company that provides services to Merchants or other establishments that may hold alcoholic beverage licenses (hereinafter, “Alcoholic Beverage Suppliers”).

If you offer any alcoholic beverages to Patrons through the Localbytes Services, you hereby acknowledge that you are an appropriately and currently licensed Alcoholic Beverage Supplier under all relevant jurisdictions in which you operate.

Any claims or disputes brought by Patrons regarding Alcoholic Beverage Supplier products offered by you through the Localbytes Services will be your sole responsibility.

By offering alcoholic beverages through Localbytes Services, you expressly represent and warrant that:

You are solely responsible for validating the legal age of any Patron ordering an alcoholic beverage from you through Localbytes upon delivery or pickup;

You are selling alcoholic beverages for personal consumption and not for resale or any other commercial purpose;

You are following all other rules, requirements, regulations, and laws in effect for your establishment at the time of sale; and,

You retain the right to either accept or refuse fulfillment of any order of alcoholic beverages to any Patron at your sole discretion.

Localbytes reserves the right to report any actions by you that would violate alcoholic beverage laws to law enforcement authorities.

Section 13: Confidential Information

The term “Confidential Information” shall mean any confidential or proprietary business, technical, or financial information or materials of one party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement.

The Receiving Party shall safeguard the Confidential Information of the Disclosing Party from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care.

The Receiving Party shall not access or use Confidential Information of the Disclosing Party other than as necessary to exercise its rights or perform its obligations in accordance with these TOU. In no case, other than as compelled by applicable law, shall Receiving Party disclose or permit access to Confidential Information of the Disclosing Party other than to Receiving Party’s employees, officers, directors, consultants, agents, service providers, and legal advisors who (i) need to know such Confidential Information for purposes of Receiving Party’s exercise of its rights and performance of its obligations under an in accordance with these TOU and (ii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section.

If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.

Section 14: Accuracy, Completeness and Timeliness of Information

We are not responsible if information made available on the Website --either by Localbytes or by a User--is inaccurate, incomplete or not current. The material on the Website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Website is at your own risk.

The Website may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of the Website at any time, but we have no obligation to update any information on our Website. You agree that it is your responsibility to monitor changes to our Website.

Section 15: Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LOCALBYTES AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, LOCALBYTES AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; AND, (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LOCALBYTES OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOU.

Section 16: Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT LOCALBYTES AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF LOCALBYTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES.

IN NO EVENT WILL LOCALBYTES’S LIABILITY IN CONNECTION WITH ANY SERVICE EXCEED THE AMOUNT PAID FOR ANY SUCH SERVICE BY YOU.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, LOCALBYTES’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON LOCALBYTES’S CHOICE OF LAW PROVISION SET FORTH BELOW.

Section 17: Indemnity

You will defend, indemnify and hold Localbytes, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from and against any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your violation of any third-party right, including without limitation any right to privacy, publicity rights or intellectual property rights, including submissions you distribute through the Services; (b) your wrongful or improper use of the Services; (c) any actual or alleged breach of your representations, warranties, and obligations set forth in these TOU; (d) your violation of any rights of another; (e) your violation of any law, rule or regulation of the United States or any other country and (f) all injuries, illnesses, damages, claims, liabilities and costs attributable to the sale of any food, beverage or other good or service by you, the Merchant, through the Services. This obligation will survive the termination or expiration of these TOU and/or your use of the Services. You are responsible for all use of the Services using your account, and that these TOU apply to any and all usage of your account.

You agree to comply with these TOU and to defend, indemnify and hold harmless Localbytes from and against any and all claims and demands arising from usage of your account, whether or not such usage is expressly authorized by you.

Section 18: Waivers

You acknowledge and agree that the seller of any food, beverage, or other good or service is the applicable Merchant and, that as the seller, you, as the Merchant, will be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs caused in whole or in part by the Merchant, as well as for any unclaimed property liability arising from unredeemed orders or portions thereof. You waive, and release Localbytes and its officers, directors, employees and agents from any claims, liabilities, damages, or injury arising from or related to any act or omission of a Merchant in connection with the goods provided in connection therewith and/or as it relates to compliance with applicable laws.

In connection with the foregoing release, you waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor".

Section 19: Disputes

“Disputes” are defined as any claim, controversy, or dispute between you and Localbytes, its partners (or their respective affiliates, agents, directors, or employees) including any claims relating in any way to these TOU, any Additional Terms, or the Services, or any other aspect of our relationship.

Section 20: Binding Individual Arbitration

You and Localbytes agree to arbitrate any and all Disputes by a neutral arbitrator and all Disputes shall be exclusively resolved by binding arbitration between you and Localbytes.

BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND LOCALBYTES ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT.

This agreement to arbitrate is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this arbitration agreement or applicable law are expressly excluded from the requirement to arbitrate. This agreement to arbitrate survives the termination of your relationship with Localbytes.

ANY ARBITRATION UNDER THESE TERMS OF USE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST LOCALBYTES.

Notwithstanding the foregoing, you and Localbytes each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 116, fully applies. Any arbitration hearing will occur in State of Delaware, or another mutually agreed upon location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

The American Arbitration Association Rules will determine who pays the arbitration fee for any Dispute. The prevailing party may seek to recover costs and fees (including reasonable attorney’s fees) from the arbitrator as part of a final award and the parties grant the arbitrator authority to determine whether the prevailing party is entitled to reimbursement of costs and fees (including reasonable attorney’s fees).

The arbitrator shall honor all evidentiary privileges recognized at law, and shall enter orders as appropriate in order to protect the parties’ trade secrets or confidential information. The parties agree to maintain either party’s trade secrets or proprietary business information as confidential and to protect the confidentiality of any other information (such as private customer information) that is legally protected from disclosure. However, we may each disclose these matters, in confidence, to our respective accountants, auditors, and insurance providers.

For purposes of this arbitration provision, references to you and Localbytes also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in, and you consent to, the exclusive jurisdiction and venue in the state courts in the State of Delaware, or federal court for the District of Delaware.

Section 21: Governing Law

These TOU and any Dispute will be governed by Delaware law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles.

Section 22: Limitation on Time to Initiate a Dispute

Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.

Section 23: Assignment

These TOU, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.

Section 24: General

These TOU and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Localbytes regarding the Services. In the event of a conflict between these TOU and any other Localbytes agreement or Policy, these TOU will prevail and control the subject matter of such conflict. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOU or Additional Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Localbytes to exercise or enforce any right or provision of these TOU will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOU, there will be no third-party beneficiaries to these TOU. No joint venture, partnership, employment, or agency relationship exists between you, Localbytes or any third party as a result of this agreement or use of the Services.

Section 25: Revisions, Disclosures, and Notices

We may amend or modify the TOU or our Policies, at any time with notice that we deem to be reasonable in the circumstances. Amended or modified TOU or Polices will be posted on our Website and communicate to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of our Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 19) that arose before the changes will be governed by the TOU or Policies in place when the Dispute arose.

Section 26: Communications

You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, reminders, and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You may also opt-out of text messages from Localbytes at any time by texting STOP to the number in your transactional text message. You acknowledge that opting out of receiving communications may impact your use of the Services.

Terms of Use