IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE. THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE MOST DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT The Terms are subject to change by Xactly in its sole discretion at any time. When changes are made, Xactly will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have provided us with your e-mail address, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms will be effective immediately for new users of the Website and will be effective for existing users upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes. Xactly may require you to provide consent to the updated Terms in a specified manner before further use of the Website is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website. Otherwise, your continued use of the Website constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
In order to access certain content, material, products or services on the Site, you may be asked to register and create an account. As part of the registration process, you may be asked to click to agree to these Terms, and may then be asked to select or submit a user name and password. You may also be required to provide us with certain information about yourself including some types of personally identifiable information, including your legal name, phone number, address, email address, gender, and age. You are responsible for ensuring that your password and account login are kept secret, safe, and secure at all times. Xactly will not be held responsible or liable for any misuse of your account in the event that a third party has access to and uses your password and account login in any way.
When placing an order through the Site, you will be required to provide other personal information, such as shipping address, billing address, and payment details. Additional information may be collected by Xactly or its third party providers at this time for security and anti-fraud purposes. You represent that the personal information you provide to us via the Site is true, valid, complete and up-to-date in all respects, and you confirm that you are the person referred to in the shipping (unless the item is a gift) and billing information provided. Should any of the information you provide on the Site change, please login to your account and update such information directly on the Site.
You will not (and will not attempt to):
You hereby grant to us the limited, nonexclusive right and license to use your submitted content (artwork, images, text and other content submitted in connection with your purchase) for the purpose of providing goods and services to you, including the right to reproduce, publish and publicly display as necessary to carry out and provide such goods and services. Any content you submit must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.
Your Obligations Regarding Rights in Content
Any content you submit must be owned or controlled by you or you must have sufficient rights therein to submit the content and grant the rights granted under this agreement with respect to such content, such that your submission and our exercise of the rights granted under this agreement will not infringe upon or violate the rights or any third party. You will obtain and pay for any and all clearances or licenses required for the use of the content and any related metadata as intended by this agreement.
Monitoring of Your Content: Removal of Content from Website
Xactly does not control or have the right to control the content and does not have any obligation to monitor the content for any purpose. Xactly may choose, in its sole discretion, to monitor, review or otherwise access some or all of the content, but by doing so Xactly assumes no responsibility for the content, no obligation to modify or remove any inappropriate elements of the content, or to monitor, review or otherwise access any other author's content or artwork.
Xactly reserves the right to remove and not use or exploit any of the content in its sole and absolute discretion, for any reason or for no reason, including if Xactly believes such content: (i) is offensive, harmful, pornographic, obscene, defamatory unlawful, indecent, inflammatory, false, misleading, fraudulent or otherwise objectionable; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon Xactly’s request; (iv) violates or is alleged to violate the intellectual property rights, privacy rights or other rights or protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in Xactly’s sole and absolute judgment is necessary to protect the business interests of Xactly and any of its business partners. Our partners and retailers may reject content for any reason (including but not limited to racist or sexual content or infringing/offensive/prohibited images or content). Xactly’s service has been rendered once we have produced and delivered the content, and if your content is rejected for any reason, Xactly will have no liability to you, and Xactly will not offer any refund or credit for any services.
Additional Representations and Warranties
You represent and warrant to Xactly that:
Limitation of Liability
IN NO EVENT WILL XACTLY BE LIABLE FOR DAMAGES OTHER THAN ACTUAL AND DIRECT DAMAGES PROVEN IN A COURT OF LAW. IN NO EVENT SHALL XACTLY’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF XACTLY AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10).
Without limiting the foregoing, you understand and acknowledge that Xactly shall not be liable to you for:
The limitations on Xactly’s liability to you in this section shall apply whether or not Xactly has been advised of or should have been aware of the possibility of any such losses arising.
You hereby indemnify, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys' fees) (collectively, "claims") arising out of or connected with any claim, demand, or action which arises out of any breach or alleged breach or violation of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding noninfringement of any copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies.
Under this section, we may permit or require you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by Xactly or imposes any conditions or obligations on Xactly other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any claims, then we shall have the option to control the defense in any matter or litigation through counsel and location of our own choosing to defend against any such claim for which you owe Xactly an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
Copyright and Intellectual Property Infringements
Notice and procedure for making claims of copyright or other intellectual property infringements.