Terms of Service
Effective Date: August 1, 2014
Last Updated Date: December 11, 2018
PAYEE TERMS OF SERVICE
These Terms of Service (“TOS”) contain the general terms, conditions and service descriptions that govern the Software as a Service services (“SaaS Services”) provided by Exactuals, Inc. (“Exactuals”) to you (“Payee”, “you”, or “your”).
NOTE: THE TOS CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THE TOS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH EXACTUALS.
Payee is required to register to use the SaaS Services by providing complete, true and accurate information as requested by Exactuals and to update that information promptly if it changes or is no longer accurate. Payee will be issued a user id and password (“Security Items”) to access Payee’s user account (“Account”) and Payee is responsible for maintaining the confidentiality of such Security Items. Any transaction initiated in accordance with Exactuals requirements for SaaS Services using Security Items are deemed authorized. You are responsible to control and protect your Security Items and to ensure they are used only by you or a person or persons you authorize. FAILURE TO PROTECT SECURITY ITEMS MAY ALLOW AN UNAUTHORIZED PARTY ACCESS TO YOUR ACCOUNT(S) AND YOUR ACCOUNT INFORMATION AND ENABLE THAT PARTY TO CONDUCT TRANSACTIONS ON YOUR ACCOUNT(S). YOU ASSUME THE RISK OF UNAUTHORIZED USE OF SECURITY ITEMS, OTHER THAN AS A RESULT OF EXACTUALS’ NEGLIGENCE OR INTENTIONAL MISCONDUCT. Payee shall immediately notify Exactuals at email@example.com if it becomes aware of any unauthorized use of or access to its Account.
Payee agrees that Exactuals may, but is not obligated to, use a customer identification program to verify the identity of the Payee. Payee also agrees that Exactuals may, but is not obligated to, use multi-factor authentication for added security or in connection with any request to recover a forgotten, lost or stolen password.
Exactuals reserves the right in its sole discretion to terminate an Account or remove Payee from the SaaS Services if Payee breaches any material terms and conditions of the TOS, or to suspend an Account if Exactuals receives a notification that an e-mail sent by Exactuals to Payee was not received or that an e-mail address is invalid or if Exactuals is unable to reach a Payee at the email address or phone number provided. If a Participating Union Payee’s account is suspended or terminated because Exactuals is unable to reach the Payee, Exactuals will forward the Payee’s residuals payments to the applicable Participating Union for further handling.
3. Use of the SaaS Services
Payee is granted a non-exclusive, non-transferable, limited license to access and use the SaaS Services for the purpose of monitoring and managing payments from the Payor. Payee will not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the SaaS Services in any manner or attempt to gain access to any other payee’s account or any information of Payor that does not relate to Payee’s transactions or that relates to any other payor. All right, title and interest in and to the SaaS Services, including all intellectual property rights, shall be owned by Exactuals.
Payor and, if applicable, a Participating Union must first authorize any features of the SaaS Services that will be accessible to Payee and the payment methods by which Payee can receive payment (including whether Payee is allowed to determine the payment method). Features that may be made available to Payee include, but are not limited to, the following:
User management – the ability to allow Payee to authorized Payee’s authorized agent (“Additional Users”) to access Payee’s Account. Any such Additional Users will be required to agree to and comply with the TOS. Payee is solely responsible for all acts or omissions of such Additional Users in using the Services on Payee’s behalf or accessing and using the Payee’s Account. Unless this feature has been activated, Payee’s are prohibited from granting any individual access to the Payee’s Security Items and Account.
Data access – the ability to view content, reports and transactions relating to Payee.
Authentication and Payee Profile – the ability to create a username and password and the ability to update email, phone and other contact information.
Payment management: the ability to change payment method, bank account information or check designation address.
Additional features designated by the Payor or Participating Union.
Payee is solely responsible for providing full and complete bank account information and/or other payment information requested by Exactuals, and for promptly updating that information if it changes or becomes inaccurate. Exactuals shall have no liability, other than to reattempt payment, to Payee for any failure to make payment or for any erroneous payment due to Payee’s failure to identify an account maintained at a branch of a bank located in the United States or failure to provide accurate banking or other information, or failure to update that information immediately if it changes. In the case of Participating Union Payees, Exactuals will forward such failed payments to the Participating Union for further handling.
4. Appointment as Agent
Payee hereby appoints Exactuals as its agent with full power and authority to represent Payee and to act on Payee’s behalf with respect to the payment of money due to Payee from the Payor and to receive such payment on behalf of Payee.
Payee hereby grants Exactuals the power and authority to execute any and all documents in Payee’s name which the Payee might execute or which may be required to obtain payment of monies due Payee from Payor and to take such other action on behalf of Payee and in Payee’s name to obtain payment from Payor as Exactuals, in its sole discretion, shall determine. Payee further authorizes Exactuals to and agrees that Exactuals may receive and deposit into any Exactuals account any monies received on behalf of Payee as payment from Payor.
Payee acknowledges and agrees that any payment of money from the Payor to Exactuals for the benefit of Payee satisfies and discharges Payor’s obligations to the Payee to the extent of such payment and Exactuals is authorized to so advise Payor on behalf of Payee and by such advice Payee is bound.
Payee authorizes Exactuals to deposit any residuals payments issued to Payee by Entertainment Partners, employers and residual payors in the bank account specified and, if necessary, to electronically debit Payee’s account to correct any erroneous entries. Payee’s authorization will remain in effect until Exactuals has received written notice from Payee of its termination in such time and manner as to provide Exactuals reasonable opportunity to act.
5. Payee Representation and Warranties
Payee represents and warrants that (a) all information provided in connection with the Payee’s Account and use of the SaaS Services is true, accurate and complete; (b) Payee is authorized and has the right to receive payment from the Payor through the SaaS Services; (c) for payments other than residuals payments to Participating Union Payees, Payee has complied with all and is not in default of any terms and conditions of Payee’s agreement with Payor; and (d) all payments are and will be made in compliance with all applicable laws, rules, regulations and orders.
6. Disclaimer of Warranties
THESE SAAS SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAAS SERVICES IS WITH YOU. EXACTUALS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS SITE, 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.
EXACTUALS DOES NOT WARRANT OR REPRESENT THAT YOU WILL RECEIVE PAYMENT FROM ANY PAYORS OR THE AMOUNT OF SUCH PAYMENT. ANY DISPUTES OR CLAIMS REGARDING PAYMENTS PROVIDED THROUGH THE SAAS SERVICES SHALL BE THE SOLE RESPONSIBILITY OF THE APPLICABLE PAYOR UNLESS RESULTING FROM EXACTUALS ACTS OR OMISSIONS. EXACTUALS SHALL HAVE NO OBLIGATION UNDER ANY CONTRACT YOU MAY HAVE WITH ANY PAYOR.
EXACTUALS HAS NO LIABILITY TO PAYEE FOR ANY LATE PAYMENT, ANY FAILURE OF PAYEE TO RECEIVE PAYMENT OR ANY INCORRECT OR INSUFFICIENT PAYMENT, FOR ANY REASON OTHER THAN EXACTUALS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. EXACTUALS IS NOT RESPONSIBLE FOR EMAIL COMMUNICATIONS THAT ARE NOT TRANSMITTED OR ARE BOUNCED BACK, EVEN IF SUCH FAILURE OF TRANSMISSION OR BOUNCE BACKS RESULTS IN PAYEE NOT RECEIVING PAYMENTS.
PAYEE AGREES THAT IT WILL SEEK RELIEF FOR ANY FAILURE TO RECEIVE PAYMENT (OTHER THAN CAUSED BY OPERATION OF THE SAAS SERVICE) OR FOR ANY ERRONEOUS PAYMENT SOLELY FROM THE PAYOR.
7. 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 THE SAAS SERVICES. EXACTUALS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH ANY PAYMENT OF FUNDS 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 KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. The foregoing limitation shall not apply to any damages arising out of Exactuals’ (i) gross negligence or willful misconduct, (ii) breach of any confidentiality obligation, including in an applicable ESA, or (iii) violation of any applicable law or regulation.
8. Indemnification and Hold Harmless
Payee agrees to defend, indemnify and hold harmless Exactuals and its parent, subsidiary(ies) and affiliated entities, and each of their officers, directors, employees and agents from and against any threatened or pending claims, loss, liability, lawsuit or expense (including attorney’s fees) to the extent arising out or relating to Payee’s material breach of these TOS and the representations and warranties herein, Payee’s use of the SaaS Services, any act or omission of Payee, any contract or other relationship with the Payor, and any payment made to Payee using the SaaS Services.
9. 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.
10. Term and Termination
Payee agrees to maintain as confidential and shall not disclose to any third party any information proprietary to Exactuals or a Payor provided by Exactuals or a Payor through the SaaS Services and to only use such information for the purpose of accessing and using the SaaS Services, provided that such information may be disclosed to the extent required by law (such as to enforce rights against Payor or to report and pay taxes). This obligation shall not apply to information that is public knowledge through no fault of the Payee or information that either Exactuals or Payor has agreed in writing can be disclosed.
12. Electronic Communications
By using the SaaS Services, Payee consents to receiving electronic communications from Exactuals under the E-Sign Consent to Use Electronic Records and Signatures. These electronic communications may include agreements, notices, account information, payment information and other information concerning or related to the SaaS Services. These electronic communications are part of Payee’s relationship with Exactuals and/or the Payor. You agree that any notices, agreements, disclosures or other communications that Exactuals sends Payee electronically satisfies any legal communication requirements, including that such communications be in writing.
13. Security of Equipment
Exactuals strongly recommends that Payee maintain and regularly update the security of its computer system using anti-virus software programs and other deterrent systems reasonably necessary to prevent unauthorized access to your computer system. Payee shall take reasonable precautions to prevent the introduction of any disabling procedures (including but not limited to software lock, malicious logic, worm, Trojan horse, bug, time bomb, etc.) into the SaaS Services. Payee is responsible for Payee’s failure to maintain or update the protection of Payee’s computer system and Exactuals shall not be liable to Payee for any loss arising by reason of Payee’s failure to do so.
Without limiting this provision in any way, Payee acknowledges and agrees that Exactuals may require Payee to communicate with Exactuals via electronic mail, the Internet and/or other electronic means and that such communications could fall victim to interception and/or access by unauthorized third parties. Exactuals requires Payee to utilize prudent and reasonable computer hardware and software security measures and Security Items (as hereinafter defined) and to follow certain minimum security practices and procedures (“Security Practices and Procedures”) in order to reduce the risk of unauthorized access to and use of Payee’s accounts by third parties. PAYEE ACKNOWLEDGES AND AGREES THAT PAYEE’S FAILURE TO UTILIZE SUCH COMPUTER HARDWARE AND SOFTWARE SECURITY MEASURES AND SECURITY ITEMS AND/OR TO FOLLOW SUCH SECURITY PRACTICES AND PROCEDURES SHALL RELIEVE EXACTUALS OF ANY LIABILITY TO PAYEE FOR UNAUTHORIZED ACCESS TO AND/OR USE OF PAYEE’S ACCOUNTS OR UNAUTHORIZED TRANSACTIONS INITIATED ON PAYEE’S ACCOUNTS RESULTING FROM PAYEE’S FAILURE.
In order to maintain secure communications and reduce fraud, Payee agrees to protect the security of Payee’s username, personal identification numbers, passwords, codes, marks, signs, public keys or other means of identification (each, a “Security Item” and collectively, “Security Items”) to access and/or use Payee’s accounts. Exactuals strongly recommends that Payee maintain and regularly update the security of Payee’s Computer System through which Payee accesses the SaaS Services, including, without limitation, by installing, maintaining and regularly updating antivirus and antispyware identification and removal software. Payee shall take all commercially reasonable precautions to prevent the introduction of any disabling procedures (including, but not limited to, a software lock, malicious logic, worm, Trojan horse, bug or time bomb) into Payee’s software or the SaaS Services that might disrupt the SaaS Services, or the equipment or software of other users of the SaaS Services. Exactuals reserves the right to block Payee’s access to the SaaS Services in order to maintain and/or restore security to the SaaS Services if we believe in Exactuals’ sole and absolute discretion that any of Payee’s Security Items has been or may be obtained or is being used or may be used by any unauthorized person.
Payee’s failure to install, maintain and/or regularly update antivirus and antispyware identification and removal software shall relieve Exactuals from responsibility for any losses to Payee attributable to such failure, except as may otherwise be required by law.
Payee agrees that complying with the Security Practices and Procedures shall not relieve Payee of Payee’s obligation and responsibility to exercise independent judgment about security and additional steps or procedures needed to prevent cyber fraud, unauthorized access to and/or use of Payee’s accounts via the SaaS Services.