Hey there! We here at [Agouti, Inc.] ("Company" or "we") run a web site hosting service and suite of social publishing tools for artists called Company (a "Service" and part of our "Services"), and we're totally stoked about you using it. We've designed our Services to give you as much control and ownership over your online website as possible — after all, our goal is to help you best express the full depth of your artistic nature.
The Application (if provided), the Website, the Services, and the information and content available on the Website and the Services (as these terms are defined below) (collectively, the "Shoutabl Properties") are protected by copyright laws throughout the world. Subject to the Terms, Company grants you a limited license to reproduce portions of the Shoutabl Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Company in a separate license, your right to use any Shoutabl Properties is subject to the Terms.
Registered Users use our Services to help create and manage webpages for themselves and/or their band. This starts by creating a webpage ("Site"), which we use, reproduce and distribute access to through the Services.
As a Registered User, you may enable music ("Music") to be played on or through your Site. You agree that any copyrightable works or metadata relating to the Music, including without limitation any related song lyrics, album cover artwork, photographs, graphics, and descriptive text, will be considered Your Content (as defined below), as will the Music and the name(s), trademarks, likenesses, and personal and biographical materials of you and, where applicable, the members of your band or group. As between you and us, you are responsible for any Music enabled through your Site(s), whether you provide such Music or enable such Music to be displayed through a third party service. Without limiting any representations below, you represent and warrant that: (i) you own or otherwise control all rights to all content in your Music, or that the content in such Music is in the public domain, (ii) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any content in your Music and/or Your Content, (iii) you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Music and/or Your Content, and to use such individual's identifying or personal information (to the extent such information is used or contained in the Music and/or Your Content.
Your Sites may contain links that enable Users to purchase goods or services related to you (or your band/artists), including, without limitation, merchandise, albums and concert tickets. You agree to comply with all applicable laws in fulfilling such orders.
If you, add other Users as members of your Site (i.e., representatives and/or fellow band members), those Users may view, edit, and modify the Site as you collaborate with them. Company is not responsible for, and does not endorse, any Registered User (or his or her acts and omissions), and or the Content provided or modified by such Registered User. Each User associated with a Registered User's Site has full and total control over such Site (both in terms of Content and controlling control over such Site), so please think carefully about who you add as a collaborator for your Sites and Your Content.
We do not normally review, inspect, edit or monitor any Sites or components thereof. However, if we believe that a Site is being used for storage and distribution of any illegal material such as copyrighted content, we reserve the right to examine the content of the Site. We reserve the right to refuse, remove or disable access to any Site stored on our servers for any reason.
If you, as a Registered User, receive any User Information (defined below) through the Website, including your Site, you will use the Fan Information only in connection with your website or mailing list, in order to provide fans with general information and news about yourself or your band, such as upcoming shows, new music and new merchandise.
When you visit other User's Sites, you may be required to provide certain personal information, including but not limited to your email address, country of residence and zip/postal code ("User Information"), in order to join the relevant Registered User's mailing list, to register on the relevant Registered User's website, and/or to join the relevant Registered User's online community or "fan club". You acknowledge and agree that Company has no control over the use of the User Information by the Registered User(s), and you further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with a Registered User's use of such User Information.
You understand that the Shoutabl Properties are evolving. As a result, Company may require you to accept updates to the Shoutabl Properties that you have installed on your computer or mobile device. You acknowledge and agree that Company may update the Shoutabl Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Shoutabl Properties.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Shoutabl Properties or any portion of the Shoutabl Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Shoutabl Properties (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other "hidden text" using Company's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Shoutabl Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Shoutabl Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Shoutabl Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Shoutabl Properties. Any future release, update or other addition to the Shoutabl Properties shall be subject to the Terms. Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Shoutabl Properties terminates the licenses granted by Company pursuant to the Terms.
As a part of the Shoutabl Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
In order to access certain features of the Shoutabl Properties you may be required to become a Registered User. For purposes of the Terms, a "Registered User" is a User who has registered an account with Company ("Account").
You may also enable access to your Account through a social networking service ("SNS") by linking your Account with account on such SNS ("Third-Party Accounts"), by allowing Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third-party service providers. By granting Company access to any Third-Party Accounts, you understand that Company may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Shoutabl Properties ("Content") that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Shoutabl Properties via your Account. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Shoutabl Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Company's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Shoutabl Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the "Settings" section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Company is not responsible for any SNS Content.
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Shoutabl Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Shoutabl Properties by minors. You may not share your Account or password with anyone, and you agree to notify Company immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Shoutabl Properties (or any portion thereof). You agree not to create an Account using a false identity or information. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Shoutabl Properties if you have been previously removed by Company, or if you have been previously banned from any of the Shoutabl Properties.
You must provide all equipment and software necessary to connect to the Shoutabl Properties, including but not limited to, a mobile device that is suitable to connect with and use the Shoutabl Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Shoutabl Properties.
You acknowledge that all Content, including the Shoutabl Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through the Shoutabl Properties ("Your Content"), and other Users of the Shoutabl Properties, and not Company, are similarly responsible for all Content they Make Available through the Shoutabl Properties ("User Content"). Your Content includes Content from a third party that you Make Available on the Shoutabl Properties. Basically, make sure you have the right to put Content on your page before you put that Content on your page.
You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company's benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on the Shoutabl Properties. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Shoutabl Properties. You agree that Company retains the right to create reasonable limits on Company's use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Company in its sole discretion.
Except with respect to Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in the Shoutabl Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Shoutabl Properties.
Company and other related graphics, logos, service marks and trade names used on or in connection with the Shoutabl Properties or in connection with the Services are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Shoutabl Properties are the property of their respective owners.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Shoutabl Properties.
Company does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Shoutabl Properties, you represent and warrant that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
You hereby grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the purposes of operating and providing the Shoutabl Properties to you and to our other Users. You agree and acknowledge that the foregoing rights include the rights to: (i) host, stream, transmit, playback and transcode your Music; and (ii) allow other Users to stream, transmit, playback, download, display, feature, distribute and otherwise use the Music. We know these rights seem broad, but we are trying to cover all of the use cases for Your Content in one sentence – otherwise, this Agreement would be even longer. Don't worry – this does not mean that we are going to resell or distribute copies of your Music without your consent. Our Services allow the streaming and playback of Music – whether we are hosting it or enabling its streaming through a third party service, but we are not going to and do not sell Music for profit. It also does not mean that all Content you provide us will be made publicly available. However, if you are a Registered User, once you publish your Site, the Content on your Site will become publicly available on the Website. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content on your Site or that you otherwise submit to any "public" area of the Shoutabl Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in the Shoutabl Properties. Please remember that even if you terminate your use of the Services, Company and its users may retain and continue to use, store, display, reproduce, modify, create derivative works, perform, and distribute any of your User Content that other users have stored or shared through Company.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Shoutabl Properties, you hereby expressly permit Company to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person's permission.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Shoutabl Properties.
You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
You agree that you will not, under any circumstances:
In connection with your use of the Shoutabl Properties, you shall not:
Company may, but is not obligated to, monitor or review the Shoutabl Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Company does not generally monitor user activity occurring in connection with the Shoutabl Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use the Shoutabl Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Company reserves the right, but has no obligation, to intercede in such disputes. You agree that Company will not be responsible for any liability incurred as the result of such interactions.
The Shoutabl Properties may contain User Content provided by other Users. Company is not responsible for and does not control User Content. Company has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk, including Users you authorize as collaborators for Your Content.
The Shoutabl Properties may contain links to third-party websites ("Third-Party Websites") and advertisements for third parties (collectively, "Third-Party Websites & Ads"). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Shoutabl Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Company. Company is not responsible for any Third-Party Websites & Ads. Company provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
We do not currently charge fees for the use of our Website or Services or any features thereof, but we reserve the right to do so in the future.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "Company Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Shoutabl Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations related to your activities under these Terms. Company 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 Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Shoutabl Properties.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SHOUTABL PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SHOUTABL PROPERTIES. COMPANY DOES NOT OFFER MEDICAL ADVICE.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SHOUTABL PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SHOUTABL PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SHOUTABL PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SHOUTABL PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SHOUTABL PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE SHOUTABL PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).
COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
It is Company's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Shoutabl Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Shoutabl Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Company's Copyright Agent for notice of claims of copyright infringement is as follows: Business Filings Incorporated, 108 West 13th St. Wilmington, DE 19801, Attn: Agouti, Inc. Copyright Agent, firstname.lastname@example.org.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Shoutabl Properties, unless terminated earlier in accordance with the Terms.
Notwithstanding the foregoing, if you used the Shoutabl Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Shoutabl Properties (whichever is earlier) and will remain in full force and effect while you use the Shoutabl Properties, unless earlier terminated in accordance with the Terms.
Company has the right to modify, suspend or terminate any Services provided to you at any time without or without reason. You agree that all terminations for cause shall be made in Company's sole discretion.
If you want to terminate the Services provided by Company, you may do so by notifying Company at any time. Your notice should be sent, in writing, to Company's address set forth below.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Shoutabl Properties, including Your Content, in Company's possession in connection with your use of the Shoutabl Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Shoutabl Properties, Company reserves the right to:
If your registration(s) with or ability to access the Shoutabl Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Shoutabl Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Shoutabl Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
The Shoutabl Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Company intends to announce such Services or Content in your country. The Shoutabl Properties are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Shoutabl Properties are appropriate or available for use in other locations. Those who access or use the Shoutabl Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
The communications between you and Company use electronic means, whether you visit the Shoutabl Properties or send Company e-mails, or whether Company posts notices on the Shoutabl Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Shoutabl Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Shoutabl Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
If you believe that Company has not adhered to the Terms, please contact Company by emailing us at email@example.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SHOUTABL PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Notwithstanding the foregoing, either you or Company may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York, New York, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C'est law volone expresse des parties que la presente convention ainsi que les documents qui s'y rattacent soient rediges en anglais.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: Business Filings Incorporated, 108 West 13th St. Wilmington, DE 19801, Attn: [Agouti, Inc.]. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
You may not use, export, import, or transfer the Shoutabl Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Shoutabl Properties, and any other applicable laws. In particular, but without limitation, the Shoutabl Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Shoutabl Properties, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Shoutabl Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
The following provisions shall apply only if you are located in the countries listed below.
A third party who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Terms, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Notwithstanding anything to the contrary in Section 12, Company is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
The following terms apply in the event we offer a mobile application.
Subject to your compliance with the Terms, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of Company's software application for mobile devices (the "Application") on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple iPhone or Android app stores ("App Store"). You acknowledge that the Terms are between you and Company and not with the App Store. Company, not the App Store, is solely responsible for the Shoutabl Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Shoutabl Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the Shoutabl Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
The following applies to any App Store Sourced Application: