Date of Last Revision: February 23, 2017
1. Acceptance of Terms of Service
By accessing or using the Services in any manner, you agree to abide by these Terms of Service and all other operating rules, policies and procedures that may be published from time to time to the Services by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of Services without notice or liability. While we will provide notice of modifications in a timely manner, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
We also reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of Services.
Arbitration Notice and Class Action Waiver: Except for certain types of disputes described in the arbitration section below, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not use the Services. Further, you may not access or use the Services if your access or use of the Services is prohibited or conflicts with any applicable local, state, national or international laws or regulations. You must notify us immediately of any change in your eligibility to use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change these eligibility criteria at any time.
For purposes of these Terms of Service, the term “Content” includes, any information, audio, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services. For avoidance of doubt, “Content” also includes all User Content (as defined below).
All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is in compliance with all applicable laws, rules and regulations, including, but not limited to, copyright laws. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not pre-screen content and do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
Notices and Restrictions
The Services may contain Content specifically provided by us, our partners or our users. Such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on such Content, in whole or in part, except that the foregoing does not apply to your own User Content that you legally upload to the Services. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Subject to these Terms of Service, we grant you a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally), copy, distribute and display Content solely for purposes of using the Services. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third-party right.
By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify (including the right to create derivative works of), aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the operation of the the Services, the promotion, advertising or marketing of the Services, or any other purposes. You agree that this license includes the right for S2M to provide, promote, and improve the Services and to make User Content submitted to or through the Services available to other companies, organizations or individuals who partner with S2M for the syndication, broadcast, distribution or publication of such User Content on other media and services, subject to our terms and conditions for such User Content use. Such additional uses by S2M, or other companies, organizations or individuals who partner with S2M, may be made with no compensation paid to you with respect to the User Content that you submit, post, transmit or otherwise make available through the Services. Such license shall survive the termination of your Account or the Services. For the avoidance of doubt, such license includes any and all rights in or to the User Content, including, without limitation, copyright, rights of privacy or rights of publicity. You also hereby do and shall grant each user of the Services a non-exclusive, perpetual license to access your User Content through the Services, and to use, edit, modify (including the right to create derivative works of), reproduce, distribute, prepare derivative works of, display and perform such User Content in connection with any use of the Services by any user of the Services. Such license shall survive the termination of your Account or the Services. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
For clarity, the foregoing License Grant to us and our users does not affect your ownership or license rights for your use of your own User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Availability of Content
We do not guarantee that any Content will be made available through the Services. You acknowledge that we may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that Content will be retained by the Services and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any Content maintained or uploaded by the Services. We reserve the right to, but do not have any obligation to, (i) remove, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms of Service), or for no reason at all and (ii) to remove or block any Content from the Services.
5. Rules of Conduct
As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
You shall use the Services only for your personal use, and not for any commercial use or for the benefit of any third party. You shall comply with all laws, rules and regulations (for example, federal, state and local) applicable to your use of the Services and your User Content, including but not limited to, copyright laws, and shall not further or promote any criminal activity or enterprise or provide instructional information about illegal activities. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any Content through the Services, including without limitation any User Content, that:
infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
you know is false, misleading, untruthful or inaccurate;
is unlawful, threatening, abusive, harassing, defamatory, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”);
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
impersonates any person or entity, including any of our employees or representatives;
includes anyone’s identification documents or sensitive financial information;
poses or creates a privacy or security risk to any person; or
in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose us or our users to any harm or liability of any type.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of S2M’s websites; (vi) harvest or scrape any Content or contact information from the Services; (vii) solicit personal information from anyone under the age of 18; or (viii) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, (iii) engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods, or (iv) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
We reserve the right to take appropriate legal action against anyone who, in our sole discretion, violates this Section, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
The Shout to Me names and logos are trademarks of Shout to Me, LLC (collectively the “S2M Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of S2M Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of S2M Trademarks will inure to our exclusive benefit.
7. Third Party Services
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. 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 the use of or reliance on any such content, goods or services available on or through any such website or resource.
8. Mobile Services
The Services include certain services that are available via a mobile device, including (i) the ability to upload Content via a mobile device, (ii) the ability to browse the Services from a mobile device, (iii) the ability to use location information from a mobile device in conjunction with the Services, and (iv) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). By using the Mobile Services, you agree that we may communicate with you regarding Company and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. You further agree that location information provided to us via the Mobile Services may be used by us and by third party partners to enable targeted advertising and other capabilities. S2M does not charge a fee to use the Services, but any text messages sent and/or received using the Services are subject to standard text messaging rates. Additionally, text messages sent and/or received count towards a monthly quota as any other messages do. You acknowledge that, whether you are sending or receiving text messages using the Services, standard text messaging rates may apply. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Company account information to ensure that your messages are not sent to the person that acquires your old number.
We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, which may result in the forfeiture and destruction of all information associated with your membership. You agree that we will not be liable to you or any third party for any termination of your access to the Services.
If you wish to terminate your Account, you may do so by emailing email@example.com.
All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Warranty Disclaimer
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; or how you may interpret or use the Content.
You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
The Services and Content are provided “as is”, “as available” and without warranty of any kind, express, statutory or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, partners and Content providers do not warrant that: (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any Content or software available through the Services is free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements. Your use of the Services is solely at your own risk.
You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
12. Limitation of Liability
In no event shall we, nor our directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Services (i) for any lost profits, data loss, use or inability to use the Services, cost of procurement of substitute goods or services, unauthorized access to or alteration of your transmissions or data, statements or conduct of any third party on the Services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever (however arising), even if we have been advised of the possibility of such damages, (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) the greater of (a) fees paid to us for the particular Services during the immediately previous three (3) month period or (b) $500.00.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations set forth above may not apply to you. If you are dissatisfied with any portion of the Services or with these Terms of Service, your sole and exclusive remedy is to discontinue use of the Services.
ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
You agree that all disputes between you and us (whether or not such dispute involves a third part) with regard to your relationship with us, including without limitation disputes related to these Terms of Service, your use of the Services, and/or rights of privacy and/or publicity, will be resolved by binding arbitration under the American Arbitration Association’s rules for arbitration of customer-related disputes and you and we hereby expressly waive trial by jury and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator selected by the American Arbitration Association. The place of arbitration shall be San Diego, California. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under these Terms of service, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the ARBITRATOR (or pending the ARBITRATOR’S determination of the merits of the controversy). As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. You are giving up your right to participate as a class representative or class member on and class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
14. Governing Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service or otherwise not subject to arbitration shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of San Diego County, California.
Entire Agreement and Severability
These Terms of Service are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to firstname.lastname@example.org.
Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact us at the email address email@example.com.