Terms Of Service

1.1 Sites

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.

1.2 Fans

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.

1.3 Updates

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.

1.4 Certain Restrictions

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.

1.5 Third-Party Materials

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.

2.1 Registering Your Account

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").

2.2 Access Through a SNS

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.

2.3 Registration Data

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.

2.4 Necessary Equipment and Software

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.

3.1 Types of Content

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.

3.2 No Obligation to Pre-Screen Content

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.

3.3 Storage

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.

4.1 Shoutabl Properties

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.

4.2 Trademarks

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.

4.3 Other Content

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.

4.4 Your Content

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.

4.5 License to 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.

4.6 Username

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.

4.7 Your Account

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.

4.8 Your Profile

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.

4.9 Feedback

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.

5.1 Commercial Activities

You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):

1. Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Shoutabl Properties (including your Account), or access to or use of the Shoutabl Properties;
2. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
3. Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or
4. Market any goods or services for any business purposes.

5.2 Unauthorized Use or Access

You agree that you will not, under any circumstances:

1. Interfere or attempt to interfere with the proper functioning of the Shoutabl Properties or connect to or use the Shoutabl Properties in any way not expressly permitted by the Terms;
2. Systematically retrieve data or other content from our Shoutabl Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
3. Use, display, mirror or frame the Shoutabl Properties, or any individual element within the Shoutabl Properties, Company's name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company's express written consent;
4. Use any unauthorized software or services that access, intercept, "mine" or otherwise collect information from or through the Shoutabl Properties or that is in transit from or to the Shoutabl Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Shoutabl Properties;
5. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Shoutabl Properties, whether through the use of a network analyzer, packet sniffer or other device;
6. Make any automated use of the Shoutabl Properties, or take any action that imposes or may impose (in Company's sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Shoutabl Properties;
7. Bypass any robot exclusion headers or other measures Company takes to restrict access to the Shoutabl Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl the Shoutabl Properties, or harvest or manipulate data;
8. Use, facilitate, create, or maintain any unauthorized connection to the Shoutabl Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Shoutabl Properties; or (ii) any connection using programs, tools or software not expressly approved by Company;
9. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Shoutabl Properties, or to obtain any information from the Shoutabl Properties;
10. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Shoutabl Properties;
11. Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
12. Solicit or attempt to solicit personal information from other Users of the Shoutabl Properties;
13. Use the Shoutabl Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
14. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Shoutabl Properties to send altered, deceptive or false source-identifying information; or
15. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware," "passive collection mechanisms" or "pcms").

5.3 General

In connection with your use of the Shoutabl Properties, you shall not:

1. Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
2. Harm minors in any way;
3. mpersonate any person or entity, including, but not limited to, Company personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4. Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
5. Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
6. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
7. Register for more than one Account or register for an Account on behalf of an individual other than yourself;
8. Stalk or otherwise harass any other User of our Shoutabl Properties; or
9. Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

7.1 User Responsibility

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.

7.2 Content Provided by Other Users

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.

11.1 As Is

1. COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SHOUTABL PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SHOUTABL PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SHOUTABL PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SHOUTABL PROPERTIES WILL BE CORRECTED.
2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SHOUTABL PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SHOUTABL PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SHOUTABL PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5. FROM TIME TO TIME, COMPANY MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

11.2 No Liability for Conduct of Third Parties

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.

11.3 No Liability for Conduct of Other Users

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.

12.1 Disclaimer of Certain Damages

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.

12.2 Cap on Liability

UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).

12.3 User Content

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.

12.4 Basis of the Bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

12.5 EXCLUSION OF DAMAGES

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.

14.1 Term

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.

14.2 Prior Use

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.

14.3 Termination of Services by Company

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.

14.4 Termination of Services by You

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.

14.5 Effect of Termination

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.

15.1 Violations

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.

15.2 Breach

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:

1. Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated the Terms;
2. Delete any of Your Content provided by you or your agent(s) to the Shoutabl Properties;
3. Discontinue your registration(s) with the any of the Shoutabl Properties, including any Services or any Company community;
4. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
5. Pursue any other action which Company deems to be appropriate.

15.3 No Subsequent Registration

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.

17.1 Electronic Communications

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.

17.2 Release

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.

17.3 Assignment

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.

17.4 Force Majeure

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.

17.5 Compliance

If you believe that Company has not adhered to the Terms, please contact Company by emailing us at support@shoutabl.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.

17.6 Limitations Period

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.

17.7 Dispute Resolution

1. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from New York law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Shoutabl Properties.
2. Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
3. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
4. You and Company must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR COMPANY MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
5. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by New York law or United States federal law.
 

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.

6. With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Company shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in New York, New York. By using the Shoutabl Properties in any manner, you agree to the above arbitration provision.
 

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.

17.8 Governing Law

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.

17.9 Choice of Language

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.

17.10 Notice

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.

17.11 Waiver

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.

17.12 Severability

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.

17.13 Export Control

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.

17.14 Entire Agreement

18.1 United Kingdom

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.

18.2 Germany

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).

19.1 Application License

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.

19.2 App Stores

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.

19.3 Accessing and Download the Application from iTunes

The following applies to any App Store Sourced Application:

1. You acknowledge and agree that (i) the Terms are concluded between you and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company.
4. You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
5. You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
6. You and Company acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
7. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.