Last Updated: 26 August, 2016
THESE TERMS REQUIRE YOU TO ARBITRATE DISPUTES WITH EXACTLY.ME, AND LIMITS EXACTLY.ME'S LIABILITY AND THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EXACTLY.ME.
As used in these Terms, "exactly.me Services" means the exactly.me website and any exactly.me services provided through the exactly.me website or Software, including the exactly.me mobile application. The exactly.me Services and Software are owned and operated by exactly messaging inc., a Delaware corporation ("exactly.me," "we" or "us"). These Terms do not alter in any way the terms or conditions of any other agreement you may have with exactly.me for products, services or otherwise. If you are using the exactly.me Services or Software on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to indemnify you and exactly.me for violations of these Terms.
exactly.me reserves the right to change or modify these Terms, or any policy or guideline of the exactly.me Services, at any time and in our sole discretion. If we make changes or modifications to these Terms, we will provide you with notice of such changes, such as by sending an email, providing notice through the exactly.me Services or updating the "Last Updated" date at the top of these Terms. Your continued use of the exactly.me Services following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and applicable policies to understand the terms and conditions that apply to your use of the exactly.me Services. If you do not agree to the amended Terms, you must stop using the exactly.me Services and Software.
If you have any questions regarding the exactly.me Services or Software, please contact exactly.me by emailing email@example.com.
exactly.me is based in the United States and the information we collect is governed by U.S. law. By accessing or using the exactly.me Services or otherwise providing information to us, you consent to the processing and transfer of information in and to the U.S. and other countries.
The exactly.me Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are under the age of 18, or age of legal majority under applicable law, you may only use the exactly.me Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the exactly.me Services, you represent and warrant that (a) you have not been previously suspended or removed from the exactly.me Services and (b) you have full power and authority to enter into this agreement and that, in doing so, you will not violate any other agreement to which you are a party.
Registration and Account
In order to access certain areas and features of some of the exactly.me Services, you will need to register for an account. You agree to (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer or mobile device; (d) promptly notify exactly.me if you discover or otherwise suspect any security breaches related to the exactly.me Services; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
Copyright and Limited License
Unless otherwise indicated, the exactly.me Services, including all content and other materials on the exactly.me Services (the "exactly.me Materials"), including the exactly.me logo, and all designs, text, graphics, pictures, videos, information, data, software, sound files and other files, and their selection and arrangement are the proprietary property of exactly.me or our licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-exclusive, non-sublicenseable and non-transferable license to access and use the exactly.me Services and exactly.me Materials; however, such license is subject to these Terms and does not include: (a) any resale or commercial use of the exactly.me Services or the exactly.me Materials; (b) the distribution, public performance or public display of any exactly.me Materials; (c) modifying or otherwise making any derivative uses of the exactly.me Services and the exactly.me Materials; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the exactly.me Services, the exactly.me Materials or any information contained on the exactly.me Services, except as expressly permitted on the exactly.me Services; (f) reverse engineering any software, methods, algorithms, or protocols used by the exactly.me Services, or (g) any use of the exactly.me Services or the exactly.me Materials other than for their intended purposes. Any use of the exactly.me Services or the exactly.me Materials other than as specifically authorized in this paragraph, without the prior written permission of exactly.me, is strictly prohibited and will terminate the license granted to you. Such unauthorized use may also violate applicable laws, including copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time.
Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicenseable and non-transferable license to use the Software only on any iPhone, iPad or iPod Touch ("Devices") that you own or control and solely as permitted by the Usage Rules set forth in the Apple App Store Terms and Conditions (the "Usage Rules"). Any exactly.me software that updates, supplements or replaces the original Software is governed by these Terms unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with these Terms or as otherwise provided in such separate terms.
The preceding states the entirety of your rights with respect to the Software, and we reserve all rights in and to the Software not expressly granted to you in this Agreement. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) distribute, copy, license, rent or sell the Software (except as expressly permitted by the foregoing license or the Usage Rules); (b) use the Software for any purpose other than your own personal, noncommercial use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Software; (d) modify, alter or create any derivative works of the Software; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Software; (f) use the Software for purposes for which it is not designed; or (g) use the Software on any Device that you do not own or control.
Consent to Use of Data
You agree that we may collect and use technical data and related information, including but not limited to technical information about your Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
"exactly.me," the exactly.me logos, and any other exactly.me product or service names or slogans are trademarks of exactly messaging inc. and may not be copied, imitated or used, in whole or in part, without the prior written permission of exactly.me or the applicable trademark holder. You may not use any meta tags or any other "hidden text" utilizing "exactly.me" or any other name, trademark or product or service name of exactly.me without our prior written permission. In addition, the look and feel of the exactly.me Services and Software, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of exactly.me and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the exactly.me Services or Software are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
Hyperlinks and Third Party Websites
You are granted a limited, non-exclusive right to create a text hyperlink to the exactly.me Services for noncommercial purposes, provided such link does not portray exactly.me or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a exactly.me logo or other proprietary graphic of exactly.me to link to the exactly.me Services without the express written permission of exactly.me. Further, you may not use, frame or utilize framing techniques to enclose any exactly.me trademark, logo or other proprietary information, including the images found on the exactly.me Services, the content of any text or the layout/design of any page or form contained on a page of the exactly.me Services without exactly.me's express written consent.
exactly.me makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible via hyperlink or websites linking to or from the exactly.me Services. Such sites are not under the control of exactly.me and exactly.me is not responsible for any embedded content or the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. exactly.me and our users may provide these links as a convenience to you, but the inclusion of any link does not imply affiliation, endorsement or adoption by exactly.me of any site or third party. When you leave the exactly.me Services or Software, you should be aware that our terms and policies no longer govern, and the policies of those third party sites will now apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the exactly.me Services or Software.
No Implied License to You
Except for the rights expressly granted to you in these Terms, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or other proprietary right of exactly.me or any third party.
Third Party Content and Interactions
Third parties may provide content and interact with users through the exactly.me Services. We are not responsible for, and we do not provide any warranties regarding, such third parties. Without limiting the foregoing, you acknowledge and agree that exactly.me is not responsible or liable in any manner for the activities or content of such third parties.
Third Party Advertisements and Promotions
exactly.me may run advertisements and promotions from third parties on the exactly.me Services or may otherwise provide information about or links to third-party products or services on the exactly.me Services. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. exactly.me is not responsible or liable for any loss or damage of any sort incurred as the result of such dealings or promotions or as the result of the presence of non-exactly.me advertisements or other third party information on the exactly.me Services.
The exactly.me Services include interactive features and areas that enable you and other users to create, post, send and store content, messages, materials, data, information, text, music, sound recordings, photos, videos, images and other items or materials on the exactly.me Services (collectively, "User Content"). You are solely responsible for your use of such interactive areas and agree that you use them at your own risk. You further agree not to post, upload to, send, distribute, store, create or otherwise publish through the exactly.me Services any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including the Federal Trade Commission Rules regarding endorsements;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Unsolicited promotions, political campaigning, advertising or solicitations;
- Private information of any third party, including addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files; or
- User Content that, in the sole judgment of exactly.me, is objectionable or which restricts or inhibits any other person from using or enjoying the exactly.me Services, or which may expose exactly.me or our users to any harm or liability of any type.
There is no tolerance for objectionable content or abusive users.
The foregoing rules do not create any private right of action on the part of any third party or any reasonable expectation or promise that the exactly.me Services will not contain any User Content that is prohibited by such rules. exactly.me takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor is exactly.me liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, exactly.me is not liable for any statements, representations or content provided by our users through the exactly.me Services. Although exactly.me has no obligation to screen, edit or monitor User Content, exactly.me reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the exactly.me Services at any time, for any reason and without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the exactly.me Services at your sole cost and expense.
License to User Content
If you create, post, send or store User Content through the exactly.me Services, you grant to exactly.me a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferrable and fully sublicenseable right to use, reproduce, distribute, modify, perform, display and otherwise use such User Content, as well as the right to use the name or exactly.me username that you use in connection with such User Content, both before and after the termination of these Terms.
You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the exactly.me Services; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms and will not violate any rights of or cause injury to any person or entity.
You are solely responsible for your conduct while on the exactly.me Services, and you agree that you will not do any of the following in connection with the exactly.me Services or our users:
- Use the exactly.me Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the exactly.me Services or that could damage, disable, overburden or impair the functioning of the exactly.me Services in any manner;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the exactly.me Services or to extract data;
- Reverse engineer any aspect of the exactly.me Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of exactly.me Services (except as otherwise expressly permitted by law);
- Attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the exactly.me Services that you are not authorized to access;
- Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose;
- Engage in any harassing, intimidating, predatory or stalking conduct, including when using the Services to send mobile messages to other exactly.me account holders;
- Develop any third-party applications that interact with the exactly.me Services without our prior written consent;
- Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Stalk, intimidate, threaten, or otherwise harass or cause discomfort to other users, including when using the Services to send mobile messages to other exactly.me account holders;
- Send any unsolicited commercial messages;
- Use the exactly.me Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms; or
- Circumvent or attempt to circumvent any filtering, security measures or other features.
You hereby grant to exactly.me a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicenseable and transferable right to use any questions, comments, feedback, suggestions, recommendations, ideas or other information regarding exactly.me or the exactly.me Services provided by you to exactly.me ("Feedback"), in any manner and for any purposes whatsoever without compensation of any kind. The foregoing license will survive the termination of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY EXACTLY.ME, THE EXACTLY.ME SERVICES AND SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXACTLY.ME DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE EXACTLY.ME SERVICES AND SOFTWARE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED ON THE EXACTLY.ME SERVICES. EXACTLY.ME DOES NOT REPRESENT OR WARRANT THAT THE EXACTLY.ME SERVICES OR SOFTWARE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE EXACTLY.ME ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE EXACTLY.ME SERVICES SAFE, EXACTLY.ME CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE EXACTLY.ME SERVICES, SOFTWARE OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT HARMFUL COMPONENTS FROM ANY DOWNLOAD.
You agree to indemnify and, at our option, defend exactly.me our directors, officers, employees and agents (collectively, the "exactly.me Entities"), from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to (a) your use of the exactly.me Services or Software; (b) any User Content or Feedback you provide; (c) your violation of these Terms; (d) your violation of any rights of a third party; or (e) your conduct in connection with the exactly.me Services or Software.
Limitation of Liability
IN NO EVENT SHALL ANY EXACTLY.ME ENTITY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE EXACTLY.ME SERVICES OR THE SOFTWARE, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED THROUGH THE EXACTLY.ME SERVICES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO EXACTLY.ME'S RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE EXACTLY.ME ENTITIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE EXACTLY.ME SERVICES OR SOFTWARE OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO EXACTLY.ME FOR ACCESS TO OR USE OF THE EXACTLY.ME SERVICES OR SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Apple, Inc. and Other Third-Party Beneficiaries
You acknowledge and agree that Apple, Inc. ("Apple") and its subsidiaries are third-party beneficiaries of this Agreement and further that (a) 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; (b) these Terms are an agreement conducted between you and exactly.me only, and not Apple; (c) exactly.me, and not Apple, is solely responsible for the Software and the content thereof; (d) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software; (e) to the maximum extent permitted by applicable law, Apple will have no warranty obligation with respect to the Software; and exactly.me, and not Apple, will be responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Software to conform to any applicable warranty; (f) in the event of any third party claim that the Software or your possession and use of that Software infringes that third party's intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; and (g) Apple will not be responsible for addressing any of your claims or any third party claims relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You 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. You agree to comply with all applicable laws and regulations, including U.S. export control laws, in the use of the Software.
Federal Government End User License Provisions. exactly.me provides the Software, including related software and technology, for U.S. Government end use solely in accordance with the following: U.S. Government rights in technical data and software related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. Government agency has a need for any additional rights, it must negotiate directly with exactly.me to determine if the parties can negotiate an acceptable license amendment that must be included in any applicable contract or agreement.
These Terms are governed by and will be construed in accordance with the laws of the State of California, USA, without reference to conflict of laws provisions.
PLEASE READ THE FOLLOWING CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH EXACTLY.ME AND LIMITS HOW YOU CAN SEEK RELIEF FROM EXACTLY.ME.
You and exactly.me agree to arbitrate any dispute arising from these Terms or your use of the exactly.me Services or Software, except that you and exactly.me are not required to arbitrate any dispute in which either party seeks equitable and or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents.
ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and exactly.me agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. You and exactly.me further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in Santa Clara County, California, USA; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS (www.jamsadr.com); (d) that the state or federal courts in Santa Clara County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration, and (e) judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will be entitled to award attorneys’ fees and other reasonable costs and expenses of arbitration to the prevailing party, and may allow discovery and other aspects of arbitration proceedings to be conducted by telephone or other cost effective means where practicable. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND EXACTLY.ME WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
Modifications to the exactly.me Services
exactly.me reserves the right to modify or discontinue, temporarily or permanently, the exactly.me Services or Software, or any features or portions of the exactly.me Services or Software, without prior notice. You agree that exactly.me will not be liable for any modification, suspension or discontinuance of the exactly.me Services or Software.
exactly.me reserves the right, without notice and in our sole discretion, to terminate your right to use the exactly.me Services or Software and to block or prevent your future access to and use of the exactly.me Services or Software. In addition, exactly.me may terminate these Terms at any time by (1) sending notice of termination to you or (2) cancelling your exactly.me account, with or without notice to you. Upon termination of these Terms, the licenses granted to exactly.me, warranty disclaimers, indemnification obligations, limitations of liability, terms regarding applicable law and arbitration, and other provisions that, by their nature, are intended to survive termination will survive.
You agree that any notices or other account-related information sent to you electronically via Facebook message to your Facebook account used to register with exactly.me or at the email address otherwise designated in your exactly.me account will be deemed to have been given by exactly.me in writing and received by you on the date sent by exactly.me.
exactly.me's failure to enforce any provision of these Terms shall not be deemed a waiver of the right to later enforce such provision or any other provision of these Terms. If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms contain the entire agreement and understanding between exactly.me and you with respect to the subject matter of these Terms, and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter.