Effective Date: August 1, 2014
Last Updated Date: August 25, 2016
Welcome to the Exactuals Website
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH EXACTUALS.
Except as provided in the Terms of Service section below, Exactuals has the right to alter the Materials and Services it offers You and/or choose to modify, suspend or discontinue this Website at any time and without notifying You. Exactuals also has the right to change, update, add or remove provisions (collectively, “Modifications”) of these Terms from time to time. Exactuals will inform You of any Modifications to these Terms by posting them on this Website and, if You have registered with Exactuals, by describing the Modifications to these Terms in an email that Exactuals will send to the address that You provided during registration. So that Exactuals properly reaches Your email inbox, Exactuals asks that You notify Exactuals if Your preferred email address changes at any time after Your registration. You can do this by updating your registration information on this Website.
If You object to any such Modifications, Your sole recourse shall be to cease using this Website and the Services. Continued use of this Website and the Services following notice of any such Modifications indicates You acknowledge and agree to be bound by the Modifications. Also, these Terms will be superseded by expressly-designated legal notices or terms located on particular pages of this Website. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
By using this Website, You promise that You are at least 18 years of age or the age of majority in your jurisdiction of residence whichever is older. In these Terms Exactuals is granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials for Your internal business or personal purposes only in connection with the calculation, administration, and processing of payments to Payees (“Permitted Purposes”); Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in this Website or any Materials, and You do not have the right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner. If You make copies of any of this Website while engaging in Permitted Purposes then Exactuals requires that You retain all of Exactuals’ copyright and other proprietary notices as they appear on this Website on such copies. If You breach any of these Terms the above license will terminate automatically, and You must immediately destroy any downloaded or printed Materials (and any copies thereof) and cease access to and use of the Services and this Website.
TERMS OF SERVICE.
Certain areas of this Website and certain of the Services, including the SaaS Services, require Payors and Payees to establish an account through the account registration page on this Website (“Your Account”). Payors and Payees will be required to submit certain personally identifiable information to establish Your Account including but not limited to (collectively “Personal Information”):
· A working email address;
· First and last name;
· Username and password.
· Address, Social Security Number or Tax ID, Date of Birth
· Company Name, Employer Identification Number, Company Address
In addition, Payors and Payees may also be required to provide certain other information in setting up Your Account and the SaaS Services, such as contract, royalty, residuals, financial, accounting and bank account information, that may be necessary to the calculation, administration and processing of payments (collectively, “Transaction Information”).
You represent and warrant that all information, including, but not limited to, any and all Personal Information and Transaction Information that you provide to establish Your Account and in connection with the Services is true, complete and accurate, and that you have the right to provide such Personal Information and Transaction Information to Exactuals for the purpose of providing the Services. You agree to defend, indemnify and hold harmless Exactuals and its affiliated and subsidiary entities, and each of their officers, directors, employees and agents (collectively, the “Exactuals Released Parties”) from any and all claims, losses, liabilities, expenses (including attorney’s fees) or costs arising out of any Transaction Information or Personal Information You provide.
In addition, You agree that Exactuals has the right to monitor Your use of the Services and use data and information related to such use, including, but not limited to, Transaction Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between You and Exactuals, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Exactuals. You acknowledge that Exactuals will be compiling Aggregated Statistics based on Transaction Information, and other information inputted into the Services, and You agree that Exactuals has the right to (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify You or any Payor or Payee. These rights shall survive any termination of these Terms or Your use of this Website or the Services.
For so long as You use Your Account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Exactuals using the below contact information and Exactuals can make the changes for You.
You are responsible for complying with these Terms when You access this Website, Your Account, or use the Services, whether directly or through Your Account that You may setup through or on this Website. Because it is Your Account, it is Your responsibility to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that Exactuals may allow You to use to access this Website. Should You believe Your password or security for this Website has been breached in any way, You must immediately notify Exactuals.
You agree to pay any and all applicable fees related to Your use of this Website and the Services which in the case of Payors is described in their ESA. Exactuals has the right to suspend or terminate Your account and/or access to the Services and this Website if Your payment is late and/or Your offered payment method (e.g., credit card or PayPal account) cannot be processed. By providing a payment method, You expressly authorize Exactuals to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular Payees and utilized services. Any cancellation of the Services by Payors shall be subject to the terms of the applicable ESA.
By using this Website and/or the Services provided on or through this Website, You consent to receiving electronic communications from Exactuals. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to this Website and/or the Services provided on or through this Website. These electronic communications are part of Your relationship with Exactuals. You agree that any notices, agreements, disclosures or other communications that Exactuals send You electronically will satisfy any legal communication requirements, including that such communications be in writing. Payors and Payees may also be required to accept a separate E-Sign Consent to Use Electronic Records and Signatures to use the Services
Certain areas of this Website may permit You to submit feedback, information, data, text, software, messages, or other materials (each, a "User Submission"). The term User Submission excludes Transaction Information and Personal Information. You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, Exactuals does not guarantee that You will be able to edit or delete any User Submission You have submitted.
By submitting any User Submission, You are promising Exactuals that:
· You own all rights in Your User Submission (including, without limitation, all rights to the reproduction and display of Your User Submission) or, alternatively, You have acquired all necessary rights in Your User Submission to enable You to grant to Exactuals the rights in Your User Submission as described in these Terms;
· You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submission;
· Your User Submission does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
· You voluntarily agree to waive all "moral rights" that You may have in Your User Submission;
· Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading;
· Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
· Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
· You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;
· Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);
· Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
· Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and
· Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, You grant to Exactuals an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
· Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submission (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
· Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that Exactuals deems appropriate in Exactuals’ sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); and
· Display advertisements in connection with Your User Submission and to use Your User Submission for advertising and promotional purposes.
This license shall survive any termination of these Terms or Your use of this Website or the Services. Exactuals has the right, but is not obligated to, pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. Exactuals is not required to host, display, or distribute any User Submissions on or through this Website and has the right to remove at any time or refuse any User Submissions for any reason. Exactuals is not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that Exactuals has the right to freely disclose Your User Submissions to any third party absent any obligation of confidence on the part of the recipient.
To be clear, Exactuals authorizes Your use of this Website only for Permitted Purposes. Any use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because, as between You and Exactuals, all rights in this Website remain Exactuals’ property.
Unauthorized use of this Website may result in violation of various United States and international copyright laws. Unless You have written permission from Exactuals stating otherwise, You are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
· For any public or commercial purpose, except for the Permitted Purposes, which includes use of this Website on another site or through a networked computer environment;
· In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
· In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
· To stalk, harass, or harm another individual;
· To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
· To interfere with or disrupt this Website or servers or networks connected to this Website;
· To use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or
· Attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.
You alone are responsible for any violation of these Terms by You. You agree to defend, indemnify and hold harmless Exactuals from any and all claims, losses, liabilities, expenses (including attorney’s fees) or costs arising out of any violation of these Terms by You or any use of Your User Submissions. Exactuals reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Exactuals’ defense of such claim.
Exactuals™ and the Exactuals logo are trademarks that belong to Exactuals. Other trademarks, names and logos on this Website are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on this Website, are Exactuals’ sole property, Copyright © 2016 Exactuals, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
INTELLECTUAL PROPERTY INFRINGEMENT.
Exactuals respects the intellectual property rights of others and encourages You to do the same. Accordingly, Exactuals has a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Website (or any portion thereof) to any user who uses this Website in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses this Website in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, Exactuals has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of this Website, please provide written notice to Exactuals’ Agent for notice of claims of infringement:
Attn: DMCA Agent
To be sure the matter is handled immediately, Your written notice must:
· Contain Your physical or electronic signature;
· Identify the copyrighted work or other intellectual property alleged to have been infringed;
· Identify the allegedly infringing material in a sufficiently precise manner to allow Exactuals to locate that material;
· Contain adequate information by which Exactuals can contact You (including postal address, telephone number, and e-mail address);
· Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
· Contain a statement that the information in the written notice is accurate; and
· Contain a statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
Exactuals will notify You that Exactuals has removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Exactuals’ Agent with a written counter-notification that includes the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which Exactuals may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
Exactuals reserves the right, in Exactuals’ sole discretion, to terminate the account or access of any user of this Website or the Services who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
THIS WEBSITE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU. EXACTUALS DOES NOT WARRANT OR REPRESENT THAT YOU WILL RECEIVE PAYMENT FROM ANY PAYORS OR THE AMOUNT OF ANY SUCH PAYMENT. ANY DISPUTES OR CLAIMS REGARDING PAYMENTS PROVIDED THROUGH THE SERVICES SHALL BE THE SOLE RESPONSIBILITY OF THE APPLICABLE PAYOR.
EXACTUALS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS WEBSITE OR THE SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THIS MEANS THAT EXACTUALS DOES NOT PROMISE YOU THAT THIS WEBSITE OR THE SERVICES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, Exactuals makes no warranty that this Website or the Services will meet Your requirements or that this Website or the Services will be uninterrupted, timely, secure, or error free or that defects in this Website or the Services will be corrected or that payments will be processed or made. Exactuals makes no warranty as to the results that may be obtained from the use of this Website or the Services or as to the accuracy or reliability of any information obtained through this Website or the Services. No advice or information, whether oral or written, obtained by You through this Website or from Exactuals or Exactuals’ subsidiaries/other affiliated companies shall create any warranty. Exactuals disclaims all equitable indemnities.
LIMITATION OF LIABILITY.
EXACTUALS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE OR IN CONNECTION WITH ANY PAYMENTS OR FAILURE TO MAKE PAYMENTS. IN NO EVENT SHALL EXACTUALS BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF EXACTUALS KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
LOCAL LAWS; EXPORT CONTROL.
Exactuals controls and operates this Website from Exactuals’ headquarters in the United States of America and the entirety of this Website may not be appropriate or available for use in other locations. If You use this Website outside the United States of America, You are solely responsible for following applicable local laws.
Any comments, questions, suggestions, comments, ideas, or concepts that You provide to Exactuals regarding this Website or the Services or any other product, feature or service (collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Exactuals is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Exactuals is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
Any dispute arising out of or in connection with these Terms or your use of this Website or the Services, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by the Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Los Angeles, California, United States. Notwithstanding the foregoing, Exactuals has the right to pursue equitable relief in the state and federal courts located in Los Angeles, California, and you agree to the exclusive jurisdiction and venue of such courts.
You understand and agree that by accepting this provision in the Terms, you and Exactuals are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this provision, you and Exactuals might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that Payee would have if Payee went to court (e.g.,, the rights to both appeal and certain types of discovery) may be limited or may also be waived.
CLASS ACTION WAIVER
The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both Payee and Exactuals specifically agree to do so following initiation of the arbitration.
If You have any questions about these Terms or otherwise need to contact Exactuals for any reason, You can reach Exactuals at firstname.lastname@example.org 310-689-7491 1100 Glendon Ave, 17th Floor, LA, CA 90024.