EFFECTIVE: FEBRUARY 1, 2016
Terms and Conditions
Agreement between user and The Site
Welcome to Exoteric. The Exoteric website (www.ExotericLiving.com, the “Site”) is comprised of various web pages operated by mPower, LLC dba Exoteric as well as functions performed by S6 software (collectively, the “Service”). The Site and the Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the “Terms”). Your use of the Site and the Service constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference.
By accepting these Terms, or by accessing or using the Site or Service, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Exoteric that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
The Site is a cloud software and web platform to providing a marketing solution for coaches and other experts who engage Exoteric.
Visiting The Site or sending emails to Exoteric constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
If you use this Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Exoteric is not responsible for third party access to your account that results from theft or misappropriation of your account. Exoteric and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
Exoteric does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use The Site only with permission of a parent or guardian.
We reserve the right to reject membership for any reason at any time.
We may suspend or terminate access to and use of the Service by You for a violation of these Terms or Exoteric’s professional standards for coaches, which such determination shall be made at the sole discretion of Exoteric management. In the event of Termination for a violation of these Terms or a violation of Exoteric’s professional standards for coaches, we will not issue either a full or partial refund.
BILLING, PLAN MODIFICATIONS AND PAYMENTS
Unless otherwise indicated on a Form referencing these Terms, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You and we will not issue either a full or partial refund.
If You choose to upgrade Your Service Plan or increase the number of authorized Agents during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Exoteric does not accept any liability for such loss. Exoteric reserves the right to contact You about special pricing if You maintain an exceptionally high number of End Users, an unusually high monthly ticket ratio per Agent, an unusually high level of open tickets or other excessive stress on the Service.
Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Exoteric based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Exoteric, or they may obtain a receipt from within the Service to track subscription status. Exoteric uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for Exoteric.
If you receive commission-based compensation from Exoteric (“Compensation Plan”) as an independent contractor, this will be subject to the Exoteric Compensation Plan in place at the time, which may be amended by Exoteric from time to time, at the sole discretion of Exoteric. If you believe that you have not received compensation in accordance with the Compensation Plan, you must notify Exoteric within 30 days after the date on which any payment was to be paid. Otherwise, you agree that the payments comply with the compensation plan and these Terms.
CANCELLATION AND TERMINATION
Either You or Exoteric may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term minus any special promotions. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.
If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to these Terms and Conditions in addition to other amounts You may owe Exoteric, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by Exoteric, provided that You provide advance notice of such breach to Exoteric and afford Exoteric not less than thirty (30) days to reasonably cure such breach.
Exoteric reserves the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ or End Users’ rights to access and use the Service, and remove, disable and discard any of Your Data if We believe that You, Agents or End Users have violated these Terms. This includes the removal or disablement of Your Data. Unless legally prohibited from doing so, Exoteric will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. Exoteric shall not be liable to You, Agents, End Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End Users may be referred to law enforcement authorities at Our sole discretion.
Links to third party sites/Third party services
The Site may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Exoteric and Exoteric is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Exoteric is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Exoteric of the site or any association with its operators.
Certain services made available via The Site are delivered by third party sites and organizations. By using any product, service or functionality originating from the The Site domain, you hereby acknowledge and consent that Exoteric may share such information and data with any third party with whom Exoteric has a contractual relationship to provide the requested product, service or functionality on behalf of The Site users and customers.
License to Exoteric, Users
You agree not to upload, post, or transmit (collectively, “Submit”) any content, video, image, text, audio recording, or other work (collectively, “Content”) that infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.) or otherwise violates any law or contractual obligation. As between you and Exoteric, you own the course Content or other Content that you Submit to the Exoteric Service. However, by Submitting Content, you grant Exoteric and its affiliates a limited, worldwide, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your Content for the purpose of (i) displaying the Content within the Exoteric Service; (ii) displaying the Content on third party websites and applications through Exoteric’s services; (iii) allowing other users to play, download, and embed on third party websites the Content, subject to your Content privacy choices; (iv) displaying the Content for promoting the Exoteric Service, including marketing such as displaying your Content or profile on the Site, or any other all our Exoteric-managed marketing websites or channels, as well as third-party partner sites or social media marketing (i.e., Facebook, Twitter, YouTube, etc.), at any time until you send Exoteric a notice requesting removal of your Content, in accordance with these Terms; and (v) archiving or preserving the Content for disputes, legal proceedings, or investigations.
You further grant all users of the Exoteric Service permission to view your Content for their personal, non-commercial purposes. This includes the right to copy and make derivative works from the Content solely to the extent necessary to view the Content. The foregoing licenses are in addition to any license you may decide to grant (e.g., a Creative Commons license).
The above licenses will continue unless and until you send Exoteric a notice requesting removal of your Content from the Exoteric Service, in which case the content will be removed and the licenses will terminate within a commercially reasonable period of time. Notwithstanding the foregoing, the license for legal archival/preservation purposes will continue indefinitely. Please note that removed Content may be cached in search engine indices after removal and that Exoteric has no control over such caching.
No unlawful or prohibited use/Intellectual Property
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Exoteric or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. Exoteric content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of Exoteric and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Exoteric or our licensors except as expressly authorized by these Terms.
Third Party Accounts
You will be able to connect your Exoteric account to third party accounts. By connecting your Exoteric account to your third party account, you acknowledge and agree that you are consenting to the continuous release of information about you to others (in accordance with your privacy settings on those third party sites). If you do not want information about you to be shared in this manner, do not use this feature.
If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Exoteric Content accessed through The Site in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless Exoteric, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney’s fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations, or any other claim brought by a third party against Exoteric arising from or related to use of the Service by You, Agents or End Users. Exoteric reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Exoteric in asserting any available defenses.
Limitation of Liability
The parties to these Terms are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties. You are choosing to make use of Exoteric services, but you are not permitted to represent yourself as an agent or employee of Exoteric. Exoteric is not liable for any of your conduct, conduct of any coach or client you choose to engage. Exoteric is not responsible for any liability you incur while using the Exoteric services, and you agree to indemnify Exoteric in the event of any lawsuit or liability against you stemming from your conduct while using the services.
General Liability Insurance
You agree to maintain General Liability Coverage for injury, bodily injury, or other liability in the amount of $1 Million each incident, including contractual liability, completed operations and product liability, on an occurrence basis with personal injury and broad form property damage coverage included with a minimum limit of liability of $1 Million per occurrence. You agree to name Exoteric as an additional insured. You shall promptly furnish Exoteric with certification of insurance and policies that shall be in a form and underwritten by a carrier and/or placed through a broker designated by or satisfactory to Exoteric. Each of the foregoing policies shall state that said insurance is primary, with no recourse to any insurance carried by Exoteric, and each of the foregoing policies shall name Exoteric (together with its successors and assigns) as an additional insured on the face of the policy, and by agreeing to these Terms you hereby certify that Exoteric has been so named under each policy that may apply to your engagement with Exoteric.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, at a location within Alameda County, California. The arbitrators award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Employer (why does it say employer?) 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.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. EXOTERIC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
EXOTERIC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXOTERIC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Exoteric’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any affiliate or in connection with any merger or change of control of Exoteric or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Exoteric with regard to the subject matter hereof. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Exoteric as Your consent to any such amendment. Exoteric’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Exoteric reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. Exoteric reserves the right, in Exoteric’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Exoteric will use commercially reasonable efforts to notify You in advance to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End Users. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific time zone) and other off-peak hours.
California Governing Law
To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Exoteric as a result of this agreement or use of the Site. Exoteric’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Exoteric’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Exoteric with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Exoteric with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Exoteric with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
Changes to Terms
Exoteric reserves the right, in its sole discretion, to change the Terms under which The Site is offered. The most current version of the Terms will supersede all previous versions. Exoteric encourages you to periodically review the Terms to stay informed of our updates.
Exoteric welcomes your questions or comments regarding the Terms:
mPower, LLC dba Exoteric
4100 Redwood Road
Oakland, CA 94619
Effective as of February 1, 2017