DEFINITIONS

“Company” means Exakto.com and any related entities to Exakto.com.
“Customer” means the registered user of Exakto.com.
“Service” means the offerings customer has access to under the Exakto.com site.

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services with uptime meeting industry standards, excluding scheduled maintenance time. Any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. 1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard policy

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. 2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. 2.5 Customer is solely responsible for compliance with the Fair Credit Reporting Act (FCRA) if Customer uses data obtained through the Service for any purpose described within the FCRA. 2.6 Customer agrees to use Vendor/Contractor Verification Service in accordance with IRS and all other federal, state, and local regulations. Any Taxpayer Identification Number (TIN) and Name combinations being verified by the Customer relate to an account where a payment reportable on forms 1099-B, DIV, INT, MISC, OID or PATR or subject to backup withholding is made or is likely to be made as defined under section 3406(b)(1) of the Internal Revenue Code. Customer appoints Company as a proxy for the Customer to collect and verify TIN/Name information on the Customer’s behalf.

3.CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. 3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.PAYMENT OF FEES

4.1 Customer will pay Company the then applicable fees (“The Fees”) via one-time or recurring credit card charge. If Customer’s use of the Services exceeds the Service Capacity set forth on the initial order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Customer may be upgraded to a higher subscription plan if applicable if the Service Capacity is exceeded in consecutive months. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. 4.2 Company may choose to bill Customer through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5.TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form or in the online agreement, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. 5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. [Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data.] All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Arkansas without regard to its conflict of laws provisions.

We respect our customers and understand that you are concerned about privacy. The purpose of this privacy policy is to let you know what kind of information we collect, how we use it, with whom it may be shared, what choices you have regarding our use of your information, and how you may review and change some of the data you provide to us. Our practices comply with all applicable U.S. laws and requirements. We are located in the United States and this is a U.S.-based web site, hosted in the US based physical data center. As we continue to develop our web site and take advantage of technologies to improve the services we offer, this policy likely will change. When we change it, we will post the change(s) on our web site. If we change the policy in a material way, we will provide appropriate online notice to you.

What Information Do We Collect and How Do We Use It?

• Personal Information

  We may collect various types of personal information from you, depending upon how you use our site. The categories of personal information we collect may include:

  • Your first and last name.
  • A home or other physical address, including street name and name of a city or town.
  • Your e-mail address.
  • Your telephone number.
  • If you make a purchase on our site, your credit card number and related information.
  • Tax Identification Number (Social Security Numbers and Employer Identification Number).

  We may use the information we collect from and about you for any of the following purposes: (1) to fulfill your requests for products and services; (2) to provide you with targeted offers and advertising on the site; (3) to contact you with information and offers from our company and other companies whose products, programs, or services we believe may be of interest to you; (4) to contact you; (5) to review site usage and operations; (6) to address problems with the site, our business or our products and services; and (7) to protect the security or integrity of the site and our business. We do not share data with any third-party marketing agencies or affiliates.

• Non-Personal Information

  We may use cookies or web beacons on our site. A cookie is a small text file that may be stored on the hard drive of your computer when you access the site. A web beacon is an electronic image used to recognize a cookie on your computer when you view a web page. We may use cookies and web beacons to collect non-personal information from you, including your IP address, browser type, the time and length of your visit, the pages of the site you visit and other clickstream data. This information may be used in order to: (1) remember the products in your shopping cart; (2) recognize you when you return to the site; (3) improve and personalize your experience on our site; (4) to monitor web activities on our website; and (5) monitor site usage and analyze the behavior of site visitors. We do not collect any personal information through our use of cookies and web beacons, and we do not combine the non-personal information we collect through them with any of your personal information. You may decline cookies, but by doing so, you may not be able to use certain features on our site. You also may be able to make some web beacons unusable by rejecting cookies. Check the “Help” menu of your browser to learn how to change your cookie preferences.

Do We Share Your Information?

We do not share or otherwise disclose information collected from and about you to any third parties, with exception of (1) to other companies, credit bureaus or government agencies in connection with issues related to fraud, credit or debt collection; (2) as necessary if we believe that there has been a violation of our site Terms of Use, of the law or of our rights or the rights of any third party; (3) to respond to judicial process and provide information to law enforcement agencies or in connection with an investigation on matters related to public safety, as permitted by law, or otherwise as required by law.
Any personal information or content that you voluntarily upload or submit for posting to the site becomes publicly available and can be collected and used by others.It is in violation of the site’s Terms of Use for you to post any content that requests personally identifiable information.

Can I Change My Information?

You may change or update your personal information by logging in to your account. If for some reason you are unable to change your personal information online, you may email a request to [email protected] for further assistance.

What About Information About Children?

We do not direct the site to, nor do we knowingly collect personal information from, children under thirteen.

Security

We have taken certain physical, electronic, contractual, and managerial steps to safeguard and secure the information we collect from site visitors. We have been audited and attained attestation for SSAE-16 SOC II compliance.

Third Party Websites

The site may contain links to third-party websites, which may have privacy policies that differ from our own. We are not responsible for the activities and practices that take place on these sites. Accordingly, we recommend that you review the privacy policy posted on any site that you may access through our site.

Contact Us

Thank you for visiting our website. If you have any questions or comments about this policy, please send an email to: [email protected].