Effective Date: August 1, 2014
Last Updated Date: January 21, 2018
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 Also, these Terms will be superseded by expressly-designated legal notices or terms located on particular pages of this Website.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or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.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 or, if You are under 18, that Your parent or guardian has consented to these Terms. 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 You as a Payee (“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; however, You may retain Your Data.
TERMS OF SERVICE.
Certain areas of this Website and certain of the Services, including the SaaS Services, require Payees to establish an account through the account registration page on this Website (“Your Account”). 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; and
- Company Name, Employer Identification Number, Company Address.
In addition, 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 intentionally misleading, false or erroneous Transaction Information or Personal Information You provide.
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.
If You are a Participating Union Payee, in the event of any conflict between these Terms and the Participating Union Agreement relating to any matter, including, but not limited to Exactuals’ use of Participating Union Payees’ Personal Information, Transaction Information, Aggregated Statistics or any other information relating to Participating Union or Participating Union Payees’ access to the Website, Accounts, or use of the Services, the Participating Union Agreement will govern. Nothing in these Terms may supersede any provision of a Participating Union Agreement.
As a Payee, You will not be charged for use of the Website and the Services in connection with residuals payments to You.
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. Payees may also be required to accept a separate E-Sign Consent to Use Electronic Records and Signatures to use the Services
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 due to your negligence or intentional misconduct. 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 and are used with permission.
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:
- Your physical or electronic signature;
- 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;
- 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
- 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.
IN NO EVENT SHALL EXACTUALS BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA), 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.
DISPUTE RESOLUTION AND ARBITRATION PROVISION.
This Dispute Resolution and Arbitration Provision (“Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between Payee and Exactuals). Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims between you and Exactuals or involving Exactuals relating to SaaS Services, it does not include claims you may have against Payors, against your own representatives, or under a Participating Union’s collective bargaining agreement.
This Provision provides that all disputes between Payee and Exactuals shall be resolved by binding arbitration and acceptance of these TOS constitutes a waiver of Payee’s right to be heard by a judge or jury. Exactuals prefer this because we believes arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). Payee may, however, opt-out of this Provision which means Payee would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).
Pre-Arbitration Claim Resolution
For all disputes, whether pursued in court or arbitration, Payee must first give Exactuals an opportunity to resolve the dispute which is first done by emailing to Exactuals at firstname.lastname@example.org the following information: (1) Payee’s name, (2) Payee’s address, (3) A written description of Payee’s claim, and (4) A description of the specific relief Payee seeks. If Exactuals does not resolve the dispute within 45 days after receiving Payee’s notification, than Payee may pursue its dispute in arbitration. Payee may pursue its dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, Payee or Exactuals may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) PAYEE OPTS-OUT OF THESE ARBITRATION PROCEDURES WITHIN 60 DAYS FROM THE DATE THAT PAYEE FIRST CONSENTS TO THE TOS OR TO ANY MODIFICATION OF THE TOS (the “Opt-Out Deadline”). Payee may opt-out of this Provision by emailing Exactuals at email@example.com the following information: (1) Payee’s name; (2) Payee’s address; (3) A clear statement that Payee does not wish to resolve disputes with Exactuals through arbitration. Exactuals will provide written confirmation whether Payee’s opt-out request has been received in a timely manner. Any opt-out request received after the Opt-Out Deadline will not be valid and Payee must pursue its dispute in arbitration or small claims court. Additionally, either party has the right to pursue a temporary restraining order and subsequent preliminary injunction or relief in aid of arbitration in the state and federal courts located in Los Angeles, California, and the Parties agree to the exclusive jurisdiction and venue of such courts for the resolution of all disputes not subject to arbitration.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or Exactuals may initiate arbitration proceedings. JAMS, www.jamsadr.com will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. You and Exactuals agree that the arbitration will be solely between You and Exactuals, unless You or Exactuals are permitted to file a cross-claim. Additionally, You or Exactuals may join a Participating Union or a Participating may intervene if the arbitration raises issues under the Participating Union Agreement. The arbitration shall be commenced and maintained as an individual arbitration, and shall in no event be commenced or maintained at any time as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration of disputes of less than $250,000, JAMS’ Streamlined Arbitration Rules & Procedures will apply; for disputes involving $250,000 or more, JAMS’ Comprehensive Arbitration Rules & Procedures will apply. In either instance, JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness shall apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. Payment of all filing, administration and arbitrator fees will be governed by JAMS’ rules. For claims brought by or against a Payee, Exactuals will pay or reimburse all filing, administration and arbitrator fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. If the value of the relief sought is more than $10,000 and You are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Exactuals will pay as much of the filing, administration, and arbitrator fees as the arbitrator(s) deem necessary to prevent the cost of accessing the arbitration from being prohibitive. In the event the arbitrator(s) determine the claim(s) You assert in the arbitration to be frivolous, You agree to reimburse Exactuals for all fees associated with the arbitration paid by Exactuals on Your behalf that You otherwise would be obligated to pay under JAMS’ rules. Exactuals will not seek attorneys' fees and costs in arbitration brought by a Payee unless the arbitrator determines the claims are frivolous. This Provision governs in the event it conflicts with JAMS’ rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the SaaS Services and the TOS concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – Exactuals or Payee may initiate arbitration in either Los Angeles, California or the federal judicial district that includes Payee’s home address. In the event that Payee selects the latter, Exactuals may transfer the arbitration to Los Angeles, California so long as Exactuals agrees to pay any additional fees or costs which the arbitrator determines Payee incurs as a result of the transfer. If the arbitration is transferred outside the district that includes Payee’s home address, all or any part of the arbitration may take place through phone or video conference or similar means at Payee’s request.
Class Action Waiver
Except as otherwise provided in this Provision, 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 in writing following initiation of the arbitration. If Payee chooses to pursue its dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to Payee. Neither Payee, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Payee understands and agrees that by accepting this Provision in these Terms, Payee 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, Payee 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 herein, 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 more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Payee’s account or discontinued use of the SaaS Services.
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.