Last Updated: January 6, 2022
Welcome, and thank you for your interest in Exacture, LLC (“Exacture,” “we,” or “us”) and our website at www.exacture.io, along with the Platform (as defined below) and our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Exacture regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING EXACTURE’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND EXACTURE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY EXACTURE AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND EXACTURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury (See Section 16).
1. Exacture Service Overview. Exacture is our proprietary, patented platform (“Platform”) for coordinating the quality assurance process and related workflows, from the start of manufacturing to when goods are shipped to consumers. Users with administrative accounts (“Admin Users”) have the ability to assign permissions to those holding accounts as vendors or suppliers (“Vendors”) or those holding accounts as inspectors (“Inspectors”). Admin Users and Vendors have the ability to view and import data to the Admin User’s account. Using data provided by Admin Users and Vendors, Exacture digitizes inspection plans and directs Inspectors through a step-by-step inspection process.
2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations; and (d) if an Admin User, you are authorized to use the Service by a customer of Exacture (“Customer”) who has entered into a customer agreement for access to the Service with Exacture (“Subscription Agreement”) or, if a Vendor or Inspector, you have been granted access by an Admin User.
3. Accounts and Registration. To access the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your company’s name and address, and your name, address, email and phone number. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@exacture.io.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
4.1 Price. Exacture reserves the right to determine pricing for the Service. Exacture will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our pricing page periodically for current pricing information. Exacture may change the fees for any feature of the Service, including additional fees or charges, if Exacture gives you advance notice of changes before they apply. Exacture, at its sole discretion, may make promotional offers with different features and different pricing to any of Exacture’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Exacture to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Exacture, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Exacture may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Exacture to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please visit . Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Exacture will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by contacting us at: support@exacture.io.
4.4 Delinquent Accounts. Exacture may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. Licenses
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Exacture grants you, solely for the benefit of Customer, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service as permitted by your access level.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Exacture an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
5.4 License to Exacture. You may choose to use certain web-based, mobile, offline, or other software application functionalities that interoperate with the Service, which may be provided by you, Customer or a third party (“Non-Exacture Applications”). You hereby grant Exacture, our affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Exacture Applications and program code created by or for you or Customer using the Service, or for use by you or Customer with the Service, and Customer Data (as defined below), appropriate for Exacture to provide and ensure proper operation of the Service. You hereby grant Exacture permission to allow any Non-Exacture Application and its provider, as used by you in connection with the Service, to access Customer Data and information about your usage of the Non-Exacture Application as appropriate for the interoperation of that Non-Exacture Application with the Service. Subject to the limited licenses granted in these Terms, Exacture acquires no right, title or interest from you, Customer or its licensors under this Agreement in or to any Customer Data, Non-Exacture Application or such program code.
6. Ownership; Proprietary Rights. The Service is owned and operated by Exacture. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Exacture (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Exacture or its third-party licensors. Except as expressly authorized by Exacture, you may not make use of the Materials. There are no implied licenses in these Terms and Exacture reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third-Party Services and Linked Websites. Exacture may provide tools through the Service that enable you to export information, including Customer Data (as defined below), to third-party services. By using one of these tools, you hereby authorize Exacture to transfer that information to the applicable third-party service. Third-party services are not under Exacture’s control, and, to the fullest extent permitted by law, Exacture is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Exacture’s control, and Exacture is not responsible for their content.
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. Customer and Usage Data
8.1 Ownership. You retain all right, title, and interest, including all intellectual property rights, in and to: (a) any data or information that you upload or input into the Service or otherwise make available to Exacture in connection with the Service; and (b) data that is generated and made available to you by the Service through use of the data described in part (a) above (collectively, “Customer Data”). You may download any Customer Data made available through the features and functionality of the Service, but Exacture otherwise has no obligation to provide to you a copy of any Customer Data stored on the Service. You are solely responsible for maintaining and backing up Customer Data.
8.2 License Grant to Exacture. You hereby grant Exacture a non-exclusive, worldwide, royalty-free, fully paid, sublicensable license to use, display, process, transmit, and store the Customer Data for the purpose of providing the Service, and otherwise exercising our rights and performing our obligations under these Terms.
8.3 License Grant to Other Users. By providing Customer Data to or via the Service to other users of the Service (e.g., by authorizing a user to view your dashboard), you grant those users a non-exclusive license to access and use that Customer Data as permitted by these Terms and the functionality of the Service.
8.4 Representations and warranties. You represent and warrant that: (a) you have and will maintain all rights necessary to grant us the licenses set forth in these Terms and to enable us to exercise our rights under these Terms; (b) your collection and use of any Customer Data in connection with the Service complies with all applicable privacy and data protection laws, rules, and regulations (collectively, “Privacy Laws”); and (c) the Customer Data, and the use of the Customer Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause us to violate any Privacy Laws or any other law or regulation.
8.5 Information Security. Exacture will implement commercially reasonable organizational and technical measures that are designed to prevent unauthorized or unlawful access, use or disclosure of Customer Data.
8.6 Usage Data. You acknowledge and agree that Exacture may collect anonymous data regarding usage and performance of the Service in connection with your use of the Service (“Usage Data”). Usage Data is and will remain the exclusive property of Exacture. Exacture may use and disclose the Usage Data for its business purposes, including, without limitation, to monitor, improve and market Exacture’s products, provided that Exacture will not distribute or convey such data in a manner that could reasonably identify you as its source.
9. Communications
9.1 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2 E-mail. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
(a) use the Service for any illegal purpose or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
(c) interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
(d) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
(e) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
(f) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
(g) attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 30 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination, and Modification of the Service
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
12.2 Termination; Refunds. If you violate any provision of these Terms, or if Customer’s Subscription Agreement is terminated, your authorization to access the Service and these Terms automatically terminate. In addition, Exacture may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@exacture.io. If you elect to terminate your Subscription Service, your subscription will continue until the end of your subscription period which is located in your account. If Exacture elects to terminate your Subscription Service without cause, then Exacture will issue to you a partial refund based on the pro-rata portion of unused Subscription Services. No refunds will be issued if Exacture terminates your Subscription Service due to your breach of these Terms.
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Exacture any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 12.3, 13, 14, 15, 16 and 17 will survive.
12.4 Modification of the Service. Exacture reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Exacture will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Exacture and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Exacture Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXACTURE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EXACTURE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND EXACTURE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR EXACTURE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE EXACTURE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Exacture does not disclaim any warranty or other right that Exacture is prohibited from disclaiming under applicable law.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE EXACTURE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY EXACTURE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE EXACTURE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO EXACTURE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM OR (B) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Exacture in the most expedient and cost-effective manner, and except as described in Section 16.1 and 16.2, you and Exacture agree that every dispute arising in connection with these Terms will be resolved through binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EXACTURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Exacture, LLC, Attention: Legal Department – Arbitration Opt-Out, 1000 Steward Ave, Garden City, NY 11530 that specifies: your full legal name, the full name and email address associated with Customer’s account on the Service (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Exacture receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator. Any arbitration between you and Exacture will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Exacture. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Exacture’s address for Notice is: Exacture, LLC, 1000 Steward Ave, Garden City, NY 11530. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Exacture may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Exacture must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Exacture in settlement of the dispute prior to the award, Exacture will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.6 Fees. If you commence arbitration in accordance with these Terms, Exacture will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Nassau County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Exacture for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7 No Class Actions. YOU AND EXACTURE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Exacture agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8 Modifications to this Arbitration Provision. If Exacture makes any future change to this arbitration provision, other than a change to Exacture’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Exacture’s address for Notice of Arbitration, in which case your account with Exacture will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9 Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Exacture receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 17.2 will govern any action arising out of or related to these Terms.
17. Miscellaneous
17.1 General Terms. These Terms, together with the Privacy Policy (as defined below), Subscription Agreement, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Exacture regarding your use of the Service. In the case of any conflict between these Terms and the Subscription Agreement, the Subscription Agreement controls. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2 Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. You and Exacture submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Nassau County, New York for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in New York, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
17.3 Privacy Policy. Please read the Exacture Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Exacture Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.6 Contact Information. The Service is offered by Exacture, LLC, located at 1000 Steward Ave, Garden City, NY 11530. You may contact us by sending correspondence to that address or by emailing us at support@exacture.io.
17.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Exacture only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.