Terms of Service
Effective Date: 20 April, 2020
These Terms of Service ("Terms") cover your use of and access to the sites, services and features (collectively, the "Services") provided by ShoutMachine (as defined below), including without limitation during free trials, on the websites and associated domains of www.shoutmachine.com on the website, mobile and other applications.
Please read this Agreement (as defined below) carefully as it includes important information about your legal rights, and covers areas such as automatic subscription renewals, warranty disclaimers, limitations of liability, the resolution of disputes by arbitration and a class action waiver.
By using or accessing the Services, you're agreeing to these Terms (this “Agreement”). If you're using the Services for an organization, you're agreeing to this Agreement on behalf of that organization, and you represent and warrant that you can do so. References to “you”, “your” and similar terms are construed accordingly in this Agreement. If you don’t agree to all the terms in this Agreement, you may not use or access the Services.
We’ve tried to make this Agreement fair and straightforward, but feel free to contact us if you have any questions or suggestions.
1. Creating Accounts
Make sure your account information is accurate and that you keep your accounts safe. You’re responsible for your accounts and any activity on them.
2. Your Content
When you upload content for your Profile to ShoutMachine, you still own it. You do, however, give us permission to use it in ways necessary to provide, improve, promote and protect our services. For example, when you upload a photo or audio or video file, you give us the right to save it and display it on your site or story at your direction. We also may promote or feature your Profile, but you can opt out if you don’t want us to do that.
2.1. Your User Content Stays Yours. Users of the Services (whether you or others) may provide us with content, including without limitation text, photos, images, audio, video, fonts, logos, stickers, code and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Services as described in this Agreement. User Content includes without limitation content you post to Your Sites. "Your Profile" means the sites (including scheduling pages or Unfold stories hosted on the Services) you create or publish using the Services.
2.2. Your License To Us. When you provide User Content via the Services (your Profile), you grant ShoutMachine (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services. This Section does not affect any rights you may have under applicable data protection laws.
2.3. Featuring Your Profile. We may choose to feature Your Profile or information included on Your Profile. You grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of Your Profile, or any portion of Your Profile, including without limitation names, trademarks, service marks or logos on Your Profile, for the limited purpose of ShoutMachine marketing and promotional activities. For example, we may feature Your Profile on our social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to Your Profile or names, trademarks, service marks or logos on Your Profile and any right of inspection or approval of any such use. This Section does not affect any rights you may have under applicable data protection laws, and you can opt out of being featured.
3. Your Responsibilities
You’re responsible for the content you provide to be published on ShoutMachine, and you vouch to us that it’s all okay to use. Please follow our rules and don’t do anything illegal with the services. Also keep in mind that what you upload is publicly viewable.
3.1. Only Use Content You’re Allowed To Use. You represent and warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license your User Content via the Services and in the manner set forth in this Agreement. If we use your User Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Services may be protected by others' intellectual property, trade secret or other rights. Please don't copy, upload, download or share content unless you have the right to do so.
3.2. Follow The Law. You represent and warrant that your use of the Services is in compliance with applicable laws, including without limitation applicable export or import controls and regulations and sanctions.
3.3. Share Responsibly. The Services let you share User Content including without limitation on social media and the open web, so please think carefully about your User Content. We’re not responsible for what you share via the Services.
3.4. Your Profile is Your Responsibility. Your Profile may have visitors and users (“End Users” such as agents or media for example). You understand and agree that (a) Your Profile and your End Users are your responsibility; (b) you’re solely responsible for representation to these End Users after they connect via Your Profile; and (c) you’re solely responsible for compliance with any laws or regulations related to Your Profile and/or your End Users. We’re not liable for, and won’t provide you with any legal advice regarding, Your Profile or your End Users. This does not limit or affect any liability we may have to you separately for any breach of the other provisions of this Agreement.
4. Third Party Services And Sites
If you use or connect another service on or to ShoutMachine (such as agents), follow a link to another site or work with someone you find on or through ShoutMachine (such as a specialist Coach), what happens is between you and them. We’re not responsible for it or what either of you do. There’s also a lot of content on ShoutMachine uploaded by our users (like you). We’re not responsible for that either.
4.1. Third Party Services. The Services are integrated with various third party services and applications (collectively, “Third Party Services”) that may make their content, products or services available to you. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them, or for what they do. When using Third Party Services, your security is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses, or business disruption, costs or expenses you may incur or otherwise experience as a result (except where prohibited by applicable law).
4.2. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites and what those third parties do.
4.3. User Content. We’re not liable for, any User Content uploaded, posted, published or otherwise made available via the Services by you or other users. You're responsible for taking precautions to protect yourself, your Accounts, and your computer or network, from User Content accessed via the Services.
4.4. ShoutMachine Specialists Coaches. Certain parts of the Services may provide directories of, and information about, independent third party ShoutMachine users, including users designated as coaching experts (collectively, "ShoutMachine Specialists") who can help you. ShoutMachine does not employ, is not affiliated with and does not endorse ShoutMachine Specialists. ShoutMachine Specialists are a Third Party Service.
5. Our Intellectual Property
ShoutMachine is protected by various intellectual property laws. This section summarizes what we own and how we share.
5.1. ShoutMachine Owns ShoutMachine. The Services are, as between you and ShoutMachine, owned by ShoutMachine, and may be protected by copyright, trade secret, trademark and other US and foreign laws. This Agreement doesn't grant you any right, title or interest in the Services, others’ User Content, our trademarks, logos or other brand features or intellectual property or trade secrets or others’ content in the Services. You agree not to change, modify, translate or otherwise create derivative works of the Services or others’ User Content.
5.2. We Can Use Your Feedback For Free. We welcome your feedback, ideas or suggestions (collectively, “Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.
5.3. Our Demo Content. We may provide templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video (collectively, “Demo Content”), to provide you with ideas or inspiration. Unless we tell you otherwise, Demo Content (or any portion of it) may not be distributed, publicly displayed, publicly performed or otherwise published unless we agree to release this.
5.4. Our Betas Are Still In Beta. We may release products and features that we’re still testing and evaluating. Those Services will be marked as beta, preview or early access (or a similar phrasing), and may not be as reliable as our other Services.
6. Our Rights
To operate effectively and protect the security and integrity of ShoutMachine, we need to maintain control over our services.
6.1. Important Things We Can Do. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by applicable law): (a) we may change parts or all of the Services and their functionality; (b) we may suspend or discontinue parts or all of the Services; (c) we may terminate, suspend, restrict or disable your access to or use of parts or all of the Services; (d) we may terminate, suspend, restrict or disable access to your Accounts or parts, some or all of Your Profile; and (e) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
7. Privacy
Our Privacy Policy explains how we collect, use and share your personal information for our own purposes.
7.1. Privacy Policy. By using the Services, you confirm that you have read and understood our Privacy Policy. However, it is not a contractual document and does not form part of this Agreement and we may change it from time to time.
8. Copyright
We comply with copyright law, and respond to complaints about copyright infringement in accordance with our Copyright Policy. We respect the intellectual property of others and ask that you do too. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
9. Paid Services And Fees
ShoutMachine is a free service.
9.1. Fee Changes. We may change our fees at any time. We’ll provide you with advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don't agree with the fee changes, you have the right to reject the change by cancelling the applicable Paid Service before your next payment date.
9.2. Fees For Third Party Services. Third Party Services purchased via the Services are subject to policies specific to the Third Party Suppliers. It's your responsibility to verify your ability to purchase, cancel or obtain a refund for a Third Party Service, and we don’t offer refunds for purchases of Third Party Services.
10. Term And Termination
This Agreement will remain in effect until terminated by either you or us. You may terminate this Agreement at any time via the Services. We reserve the right to change, suspend or discontinue, or terminate, restrict or disable your use of or access to, parts or all of the Services or their functionality at any time at our sole discretion and without notice. For example, we may suspend or terminate your use of part or all of the Services if you're violating these Terms.
All sections of this Agreement that by their nature should survive termination shall survive termination, including without limitation Your Content, Our Intellectual Property, Warranty Disclaimers, Limitation of Liability, Indemnification, Dispute Resolution and Additional Terms.
11. Warranty Disclaimers.
We work hard to make ShoutMachine great, but the services are provided as is, without warranties.
11.1. Disclaimers. To the fullest extent permitted by applicable law, ShoutMachine makes no warranties, either express or implied, about the Services. The Services are provided “as is” and “as available”. ShoutMachine also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from ShoutMachine, shall create any warranty. ShoutMachine makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components.
11.2. Exceptions. Under certain circumstances, some jurisdictions don't permit the disclaimers in Section 13.1, so they may not apply to you. However, the disclaimers apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.
12. Limitation Of Liability
You acknowledge and agree that to the fullest extent permitted by applicable law, in no event will ShoutMachine and its affiliates and its and their directors, officers, employees and agents be liable with respect to any claims arising out of or related to the Services or this Agreement for:
(a) any indirect, special, incidental, exemplary, punitive or consequential damages;
(b) any loss of profits, revenue, data, goodwill or other intangible losses;
(c) any Losses (as defined below) related to your access to, use of or inability to access or use parts, some or all of your Account, Your Profile or parts or all of the Services, including without limitation interruption of use or cessation or modification of any aspect of the Services;
(d) any Losses related to unavailability, degradation, loss, corruption, theft, unauthorized access or, unauthorized alteration of, any content, information or data, including without limitation User Content and Your eCommerce data;
(e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or
(f) any Third Party Services or third party sites accessed via the Services. If you are an EU Consumer, we shall, despite any other provision in this Agreement, provide the Services with reasonable care but will not be liable for any losses which were not a reasonably foreseeable consequence of our breach of this Agreement (except in relation to death or personal injury resulting from our negligence or fraud). These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not ShoutMachine has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed its essential purpose. To the fullest extent permitted by applicable law (whether or not you are an EU Consumer), in no event shall the aggregate liability of ShoutMachine for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to ShoutMachine in the twelve (12) months immediately preceding the event that gave rise to such claim. If you are an EU Consumer, ShoutMachine is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors or other vicarious agents. An “EU Consumer” means a natural person acting for purposes outside their trade, business, craft or profession (as opposed to a User for business or commercial purposes) habitually residing in the European Economic Area.
13. Indemnification
To the fullest extent permitted by law, you agree to indemnify and hold harmless ShoutMachine and its affiliates and its and their directors, officers, employees and agents from and against all damages, losses, liabilities, costs, claims, demands, fines, awards and expenses of any kind (including without limitation reasonable attorneys' fees and costs) (collectively, "Losses") arising out of or related to: (a) your breach of this Agreement; (b) Your Profile; and (c) your violation of any law or regulation or the rights or good name of any third party, including other operations for which ShoutMachine may be held jointly and severally liable. Your indemnification obligations under this Section shall not apply to the extent directly caused by our breach of this Agreement or, where you are an EU Consumer, to the extent that the consequences were not reasonably foreseeable.
14. Dispute Resolution
This Section 16 may not apply to you. If it does, before filing a claim against ShoutMachine, you agree to try to work it out informally with us first. Also, all formal disputes must be resolved through arbitration following the rules described below, unless you opt out of arbitration following the procedure described below. Finally, claims can only be brought individually, and not as part of a class action.
15. Additional Terms
This section includes some additional important terms. For instance, this Agreement is the whole agreement between us regarding your use of ShoutMachine. If we ever change it in a way that meaningfully reduces your rights, we’ll give you notice and an opportunity to cancel. Also, if you’re reading this in a language other than English, note that the English language version controls.
15.1. Entire Agreement. This Agreement constitutes the entire agreement between you and ShoutMachine regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. You agree that you have not relied upon, and have no remedies in respect of, any term, condition, statement, warranty or representation except those expressly set out in this Agreement. You also may be subject to additional terms, policies or agreements that may apply when you use other services, including Third Party Services. This Agreement creates no third party beneficiary rights, and no third party shall have any right or standing to claim benefit or bring an action to enforce this Agreement.
15.2. Controlling Law; Judicial Forum For Disputes.
15.2.1. For all Users, this Agreement (including its existence, formation, operation and termination) and the Services as well as all disputes and matters arising out of or in connection with this Agreement and the Services (including non-contractual disputes and matters) shall be governed in all respects by the laws of the State of New South Wales, Australia. You and ShoutMachine consent to venue and personal jurisdiction in such courts.
15.3. Waiver, Severability And Assignment. Our failure or delay to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign this Agreement or any of your rights or obligations hereunder without our prior written consent, and any such attempt will be of no effect. We may delegate, transfer or assign this Agreement or some or all of our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services, with thirty (30) days prior written notice.
15.4. Modifications. We may modify this Agreement from time to time, and will post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will not apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement and price changes. If you disagree with our changes, then you must stop using the Services and cancel all Paid Services.
15.5. Events Beyond Our Control. We are not in breach of this Agreement or liable to you if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
15.6. Translation. This Agreement was originally written in English. We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control except where prohibited by applicable law.