LAST UPDATED ON: 1st April, 2021
CREATOR TERMS OF SERVICE
These Terms of Service (“Terms”) govern your use of the services, software and websites (the “Service”) provided by MYSCOOT TECH PRIVATE LIMITED company incorporated under the Companies Act, 2013 with its registered office at 554, Pkt-1 Sec-22, Dwarka, New Delhi -110077 ( “We”, “Our”, “Company” “Exly”), and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (together, the “Content”) uploaded, downloaded, or appearing on our Website or Applications. All such Content exclusively belongs to the Company.
All terms used with a capitalized first letter shall have the meaning assigned to them hereunder.
The Website and Application are collectively referred to as “Platform”
The” “User(s)” or “Members” refers to any person who registers to avail the Creator Services on the Creator Webpage.
The Company shall provide the following services to the Creator such as a platform to create a Creator Webpage, overall management, lead generation (if applicable), payment facilitation and support. (“Services”)
The Creator shall register by following the instruction/direction on the Platform and providing details such as but not limited to profile information, scheduling, type of services to be provided by Creator and bank account details. ( “Creator” or “You” or “Your”)
If You are registering a Exly account for a company or other legal entity, You represent and warrant that You have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
You may not assign or otherwise transfer your Exly account to another party.
You must provide accurate, current and complete information during the registration process and keep the information up to date at all times.
- GENERAL DISCLAIMER
- As the provider of the Exly Platform, Exly does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Creator Services(as defined below).
- No joint venture, partnership, employment, or agency relationship exists between You and Exly as a result of this Agreement or Your use of the Exly Platform. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
- To promote the Exly Platform and to increase the exposure of Creator Webpage and Creator Services it may be displayed on other websites, in applications, within emails, and in online and offline advertisements.
- To assist Creators who speak different languages, Creator Webpage and/Creator Services may be translated, in whole or in part, into other languages. Exly cannot guarantee the accuracy or quality of such translations and Creators are responsible for reviewing and verifying the accuracy of such translations. The Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and noninfringement.
- If You access or download the Application from the Apple App Store, You agree to Apple’s Licensed Application End User License Agreement. Some areas of the Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
- The access to or use of certain areas and features of the Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Platform, the latter terms and conditions will take precedence with respect to Your access to or use of that area or feature, unless specified otherwise.
- You agree that You shall not access the Platform by any other means other than through the interfaces that are provided by Us.
- You agree that You shall not acquire, copy, or monitor any portion of the Platform in any way to reproduce or circumvent the navigational structure or presentation of the Platform, to obtain or attempt to obtain any materials, documents, or information through any means not specifically made available through the Platform.
- You agree that You shall not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the Platform, any other software, products, models, prototypes, or other items provided by Us.
- You agree that You shall not use any deep link, robot, spider or other automatic device or methodology, or any similar or equivalent manual process, to access, acquire, download, copy or monitor the Platform or any part thereof, or obtain any content through means not specifically made available through the Platform.
- You agree that You shall not breach any provisions of the Agreement or violate any provisions of applicable law.
- CODE OF CONDUCT
- You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to Your use of the Platform. Creator shall not host, display, upload, modify, publish, transmit, store, update or share any information that:
- belongs to another person and to which the You do not have any right to;
- is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
- is harmful to child;
- infringes any patent, trademark, copyright or other proprietary rights;
- violates any law for the time being in force;
- deceives or misleads the addressee about the origin of such messages or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
- impersonates another person;
- threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;
- contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
- is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;
- If any Creator feels that any User you interact with, online, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behaviour, (ii) you suspect of stealing from You, or (iii) engages in any other disturbing conduct, You should immediately report such person to the appropriate authorities and then to Exly by contacting us with Your police station and report number (if available); provided that Your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to You;
- A Creator cannot contact a Member for any purpose such as the Member's use of the Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
- You shall not use the Platform to request, make or accept a booking independent of the Platform, to circumvent any Creator Fees(as defined below) or for any other reason; and
- You shall not request, accept or make any payment for any fee outside of the Platform or Exly Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Exly harmless from any liability for such payment.
- LINKS TO THIRD PARTY SITES
The Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Exly is not responsible or liable for the availability or accuracy of such Third- Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Exly of such Third-Party Services.
- AMENDMENTS OF THESE TERMS
Exly reserves the right to change, modify, amend, or update these Terms and/ or the Agreement from time to time and such amended provisions of these Terms and/ or the Agreement shall be effective immediately upon being posted on the Platform and You can determine when these Terms were last revised by referring to the ’LAST UPDATED’ at the top of these Terms. If You do not agree to such provisions, You must stop using the Platform with immediate effect. Your continued use of the Platform will be deemed to signify Your acceptance of the amended provisions of these Terms and/ or the Agreement.
- CREATOR SERVICES AND CREATOR WEBPAGE
“Creator Webpage” shall mean the page on the Platform dedicated to the Creator where the services/ offerings of the Creator are curated and made available to the Members by the Creator, powered by Exly.
“Creator Service” shall mean the services or products offered on the Creator Webpage by the Creator to the Members.
- OBLIGATION OF THE CREATOR
- The Creator shall be responsible for any and all content posted or uploaded by the Creator on the Creator Webpage.
- The Creator shall list the Creator Services available and price on the Creator Webpage.
- The Creator shall be solely responsible for the Creator Webpage and the Creator Services.
- The Creator shall be solely responsible to provide the Creator Services to the accepted Members in the timeline stated by the Creator.
- The Creator shall act in a professional manner while interacting with the Members.
- The Creator shall list the cancellation policy for each of the Creator Services.
- The Creator shall comply with the terms and conditions of the Platform.
- The Creator shall be responsible to provide proof of Creator Service immediately at the request of Exly. The Creator agrees that incase of any dispute with the Member the Creator shall be solely liable for the same.
- PAYMENT TERMS
- “Payout Method” means a payout method is only the bank account mentioned by the Creator while creating an Exly account, to which Exly will credit the payment after the successful completion of the Creator Service as per the terms.
- The Company shall collect the payment from the Member on behalf of the Creator.
- The Member’s payment obligation to the Creator is extinguished on payment of the total fees to Exly, and Exly is responsible for remitting the same (less the Creator Fees and any Taxes in respect of the Creator Fees) to the Creator.
- The Company shall make all payments within ten (10) working days from the receipt of payment for the Creator Service from the Member.
- Exly will charge fees to Creators ("Creator Fees") for Creator Service booking, and other fees wherever applicable, Exly will also charge Taxes in respect of the Creator Fees. Exly deducts the Creator Fees from the Creator Service fee before remitting the balance to the Creator as described in these Payments Terms. In case of a Creator, there will be a up to 5% (five percent) as service charge (GST, as applicable in addition). Balances will be remitted by Exly to Creators via the Payout Method selected by the Creator.
- The Creator understands that the Company shall charge an internet handling fee which shall be paid by the Creator or collected from the User. The internet handling fee shall be up to 3% (three percent).
- Payment Processing Errors: We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method used for the original Payout, so that you end up receiving or paying the correct amount.
- As a Creator You are solely responsible for determining your obligations to report, collect, remit or include in your fee any applicable VAT or other indirect sales taxes, or income taxes ("Taxes").
- Tax regulations may require us to collect appropriate Tax information from Creators, or to withhold Taxes from Payouts to Creators, or both. If a Creator fails to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold Taxes from Payouts to you, we reserve the right to freeze all Payouts, withhold such amounts as required by law, or to do both, until resolution.
- ROUNDING OFF, CURRENCY CONVERSION
- Exly may, in its sole discretion, round up or round down amounts that are payable from or to Members or Creators to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest dollar, euro or other supported currency); for example, Exly will round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00. For currencies that are denominated in large numbers, Exly may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; for example, Exly may round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 837,500 up to 838,000 and 837,499 down to 837,000. 12.2 The Exly Platform facilitates bookings between Members and Creators who may prefer to pay in a currency different from their destination currency, which may require currency conversions to accommodate these differing currency preferences. Although the Platform allows Members to view the price of Creator Service in a number of currencies, the currencies available for Members to make and receive payments may be limited, and may not include the default currency in any given geographic location. Details regarding currency conversion, including any associated fees, are detailed in the Payments Terms.
- In case of currency conversation rates applicable in the Platform then the conversation shall be closest to the RBI’s conversation rate.
- The Creator may (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Platform/Creator Webpage ("Creator Content"); and (ii) access and view Creator Content and any content that Exly itself makes available on or through the Platform, including proprietary Exly Content and any content licensed or authorized for use by or through Exly from a third party ("Exly Content" and together with Creator Content, "Collective Content").
- The Platform, Exly Content, and Creator Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of India and other countries. You acknowledge and agree that the Platform and Exly Content, including all associated intellectual property rights, are the exclusive property of Exly and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, Exly Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Exly used on or in connection with the Platform and Exly Content are trademarks or registered trademarks of Exly in India and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Platform, Exly Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
- You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or Collective Content, except to the extent you are the legal owner of certain Creator Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Exly or its licensors, except for the licenses and rights expressly granted in these Terms.
- Subject to Your compliance with these Terms, Exly grants you a limited, non-exclusive, non- sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Exly Content made available on or through the Platform and accessible to You, solely for Your personal and non-commercial use.
- By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Creator Content on or through the Platform, You grant to Exly a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Creator Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Creator Content to provide and/or promote the Platform, in any media or platform. Unless You provide specific consent, Exly does not claim any ownership rights in any Creator Content and nothing in these Terms will be deemed to restrict any rights that You may have to use or exploit your Creator Content.
- Exly may offer Creators the option of having professional photographers take photographs or videos of their Creator Services, which are made available by the photographer to Creators to include in their Creator Webpage with or without a watermark or tag bearing the words "Exly.com Verified Photo" or similar wording ("Verified Images"). The Creator is responsible for ensuring that the Creator Service is accurately represented in the Verified Images and you will stop using the Verified Images on or through the Platform if they no longer accurately represent your Creator Service. You acknowledge and agree that Exly shall have the right to use any Verified Images in advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Creator Services or otherwise, without further notice or compensation to you. Where Exly is not the exclusive owner of Verified Images, by using such Verified Images on or through the Platform, you grant to Exly an exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to use such Verified Images for advertising, marketing and/or any other business purposes in any media or platform, whether in relation to your Creator Services or otherwise, without further notice or compensation to You.
- You are solely responsible for all Creator Content that you make available on or through the Platform/Creator Webpage. Accordingly, You represent and warrant that: (i) You either are the sole and exclusive owner of all Creator Content that you make available on or through the Platform/Creator Webpage or you have all rights, licenses, consents and releases that are necessary to grant to Exly the rights in and to such Creator Content, as contemplated under these Terms; and (ii) neither the Creator Content nor Your posting, uploading, publication, submission or transmittal of the Creator Content or Exly's use of the Creator Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when You or Exly terminate the Agreement.
- Either Party may terminate this Agreement for convenience at any time by giving You thirty (30) days' notice via email to Your registered email address.
- Exly may immediately, without notice terminate this Agreement if (i) You have materially breached Your obligations under these Terms, the Payments Terms, Our Policies or Standards, (ii) You have violated applicable laws, regulations or third party rights, or (iii) Exly believes in good faith that such action is reasonably necessary to protect the personal safety or property of Exly, its Users, or third parties (for example in the case of fraudulent behaviour of a Creator (iv) The Creator or Creator Services at any time fail to meet any applicable quality or eligibility criteria, ,
- If We take any of the measures described above (i) we may refund Your Members in full for any and all confirmed bookings that have been cancelled, irrespective of pre existing cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
- When this Agreement has been terminated of breach, you are not entitled to a restoration of Your account or any of Your content. If your access to or use of the Platform has been limited or Your account has been suspended or this Agreement has been terminated by Us for breach, You may not register a new account or access and use the Platform through an another account.
Exly’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
- USE OF PERSONAL INFORMATION
If You choose to use the Platform or Collective Content, You do so voluntarily and at your sole risk. The Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied. You agree that You have had whatever opportunity you deem necessary to investigate the Services, laws, rules, or regulations that may be applicable to your Creator Services You are providing and that You are not relying upon any statement of law or fact made by Exly. The Creator Services may carry inherent risk, and You will be liable those risks. You assume full responsibility for the Creator Service. The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Platform and Collective Content, your publishing of any Creator Services via the Platform remains with You. Neither Exly nor any other party involved in creating, producing, or delivering the Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Platform or Collective Content, (iii) from any communications, interactions or meetings with Users or other persons with whom You communicate, interact or meet with as a result of Your use of the Platform, or (iv) from your publishing Creator Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Exly has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Creators pursuant to these Terms or an approved payment request, in no event will Exly’s aggregate liability arising out of or in connection with these Terms and your use of the Platform including, but not limited to, from your publishing of any Creator Service via the Platform, or interactions with any other Members, the amounts paid by Exly to you in the twelve (12) month period prior to the event giving rise to the liability or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Exly and You.
- NO GUARANTEE
Exly has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Creator Services, (ii) the truth or accuracy of any Creator Service descriptions, ratings, reviews, or other Creator Content (as defined above), or (iii) the performance or conduct of any Member or third party. Exly will not endorse any Creator or Creator Services.
Due to the nature of the Internet, Exly cannot guarantee the continuous and uninterrupted availability and accessibility of the Platform. Exly may restrict the availability of the Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Platform. Exly may improve, enhance and modify the Platform and introduce new Exly Services from time to time.
You agree to release, defend (at Exly’s option), indemnify, and hold Exly and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Platform or any Exly Services, (iii) your interaction with any Member, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction or use, or (v) your breach of any laws, regulations or third party rights.
- APPLICABLE LAW AND JURISDICTION
These Terms shall be governed by the laws of India. You agree that Exly is solely based in India, and nothing shall give rise to personal jurisdiction over Exly in jurisdictions other than New Delhi, India and You shall not raise any claims against Exly in any court or forum in any jurisdiction other than New Delhi, India. Any claim or dispute between the Creator and Exly will be entertained and tried solely and exclusively by a court of competent jurisdiction located in New Delhi, India and no other place whatsoever.
All notices or demands to or upon Exly shall be effective if in writing and shall be deemed to be duly made when sent to MyScoot Tech Private Limited at 554, Pkt-1 Sec-22, Dwarka, New Delhi -110077.
All notices or demands to or upon a Creator(s) shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the Creator(s) on the Platform, or by posting such notice or demand on an area of the Platform that is publicly accessible.
Notice to a Creator(s) shall be deemed to be received by such Creator(s) if and when the Platform is able to demonstrate that communication, whether in physical or electronic form, has been sent to such Creator(s), or immediately upon Platform’s posting such notice on an area of the Platform that is publicly accessible.
If, for any reason, a court of competent jurisdiction finds any provision of the Terms, or portion thereof, to be unenforceable, that portion shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties as reflected by that provision. The remainder of the Terms shall continue in full force and effect.
- Headings for any section of the Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- The Company shall have the right to assign its obligations and duties in this Agreement to any person or entity.
- All telephonic calls to the Company will be kept completely confidential. However, Your call may be recorded to ensure quality of service. Further, for training purposes and to ensure excellent customer service, calls from the Company to the Creator or from the Creator to the Company may be monitored and/or recorded.