STANDARD TERMS & CONDITIONS

 

  1. DEFINITIONS

 

1.1.   “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, provided, however, that an Affiliate of Subscriber shall not include any entity that competes with Tout.  For the purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

 

1.2.   “Authorized Sites” are the sites listed in Exhibit B. 

 

1.3.    “Effective Date” means the date as of which the Agreement enters into force.

 

1.4.   “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.

 

1.5.   “Net Revenue” means the amounts actually collected by Subscriber or Tout for advertising, less any applicable agency commissions and other third-party fees.

 

1.6.   “Services” means the Tout Application, Tout Platform, Tout Player, Tout Service and additional or ancillary services to which Subscriber subscribes pursuant to the Agreement.

 

1.7.   “Subscriber Data” means all data submitted by Subscriber to Tout on or through the Services.

 

1.8.   “Subscriber Videos” means all text, graphics, audio, video, computer code, hypertext links, URL’s, and data, in any format, provided by or on behalf of Subscriber for display on or through or integration into the Services.

 

1.9.   “Third-Party Application” means an application made available by a party other than Tout which interoperates with or is available through the Tout Platform and/or Tout Applications.

 

1.10. “Third-Party Videos” means all text, graphics, audio, video, computer code, hypertext links, URL’s, and data, in any format, provided by or on behalf of Tout, or its licensed content partners, for display on or through or integration into the Services.

 

1.11. “Tout” is an Application Service Provider (ASP) that operates and delivers a real-time video publishing platform.

 

1.12. “Tout Application” is an application made available by Tout which interoperates with the Tout Platform to provide Subscribers with the capability to create and publish Tout video updates.

 

1.13. “Tout Platform” means Tout’s hosted real-time video platform that allows Subscribers to publish and manage video content through the Services and Tout Player.

 

1.14. “Tout Player” means Tout’s video player, headline feed, thumbnail feed, and other products that display and link to Subscriber Videos and Third-Party Videos.

 

1.15.  “Tout Service” is Tout’s hosted service, online services, and select application programming interfaces.

 

1.16. “Users” means entities authorized by Subscriber to use the Services on Subscriber’s behalf and which have been supplied user identifications and passwords by Subscriber (or by Tout at Subscriber’s request).  Users may include, but are not limited to, Subscriber and its Affiliates and their respective employees, consultants, contractors, and agents.

 

  1. THIRD-PARTY PROVIDERS

 

2.1.   Tout does not: (a) warrant, endorse, or support third-party products or services, whether or not they are designated by Tout as “certified” or otherwise; and (b) control the quality or availability of goods and services accessed through the Services.  No license or purchase of third-party products or services is required to use the Services.

 

2.2.   If Subscriber installs or enables Third-Party Applications for use with the Services, Subscriber acknowledges that Tout may allow providers of those Third-Party Applications to access Subscriber Data as required for the interoperation of such Third-Party Applications with the Services. Tout will not be responsible for any disclosure, modification, or deletion of Subscriber Data resulting from any such access by Third-Party Application providers.

 

2.3.   Features of the Platform that interoperate with third parties such as Facebook, YouTube, and Twitter (each, a “Third Party Service”) depend on the continuing availability of such third parties’ respective API’s and programs for use with the Services.  If any such third party ceases to make their respective API or programs available on reasonable terms for the Services, as determined by Tout in its sole discretion, such cessation shall be deemed a form of force majeure, and Tout may cease providing such Third Party Service features.

 

  1. CONFIDENTIALITY

3.1.   As used herein, “Confidential Information" means all confidential information disclosed by a party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Subscriber’s Confidential Information will include Subscriber Data; Tout’s Confidential Information will include the Services; Confidential Information of each party will include the terms and conditions of the Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  However, Confidential Information (other than Subscriber Data) will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

 

3.2.   Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (c) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who are bound by confidentiality obligations with the Receiving Party containing protections no less stringent than those herein.

 

3.3.   Without limiting the above, Tout will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data. Tout will not: (a) modify Subscriber Data; (b) disclose Subscriber Data except as compelled by law or as expressly permitted in writing by Subscriber; or (c) access Subscriber Data except to provide the Services or prevent or address service or technical problems, or at Subscriber’s request in connection with Technical Support.

 

3.4.   The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

4.1.   Each party represents and warrants to the other party that: (a) it has full right, power and authority to enter into and fully perform its obligations under the Agreement; (b) the execution, delivery and performance of the terms and conditions of the Agreement do not conflict with any other agreement to which it is a party or by which it is bound; and (c) with respect to: (i) Tout the provision of the Services (other than content, data or other intellectual property from Subscriber or any third party); and (ii) Subscriber, the provision of the Subscriber Videos and Subscriber Data, and Subscriber and its Users use of the Services; does not and will not violate any applicable statute, regulation, or law (including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, credit or financial reporting laws and regulations), or infringe or misappropriate any intellectual property right or other legal right of any third party.

 

4.2.   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE TOUT PLATFORM, AND ALL RELATED INFORMATION, TECHNOLOGY AND SERVICES PROVIDED BY OR ON BEHALF OF TOUT ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, STATUTORY, EXPRESS, OR IMPLIED, WHATSOEVER. TOUT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF TOUT IS ADVISED OF THE PURPOSE), ACCURACY AND/OR NON-INFRINGEMENT. IN ADDITION, TOUT DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE INTERNET, AND THEREFORE MAKES NO REPRESENTATION OR WARRANTY THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, OR SECURE, OR ERROR FREE, OR THAT THE SERVICES WILL MEET SUBSCRIBER’S NEEDS, OR THAT DATA WILL NOT BE LOST.

  1. INDEMNIFICATION

 

5.1.   Each party (an “Indemnifying Party”) will indemnify, defend, and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents, and subsidiaries from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees), and expenses relating to, or arising or resulting from, the Indemnifying Party’s breach or alleged breach of the Agreement or any of the Indemnifying Party’s representations and warranties hereunder in Section 4.1. This indemnity does not apply to, and Tout will have no obligation for any infringement or misappropriation claim that arises from: (a) modifications to the Services: (i) by anyone other than Tout; or (ii) based upon instructions or specifications furnished by the Subscriber; (b) use of the Services other than as specified in the Agreement or in the applicable documentation; (c) use of the Services in conjunction with third-party software, hardware or data other than that approved by Tout; or (d) any combination of the foregoing. Subscriber shall indemnify, defend, and hold Tout and its officers, directors, employees, agents, and successors, and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees), and expenses to the extent they arise from claims of infringement or misappropriation arising from the factors in the foregoing sentence.

5.2.   The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims for which it seeks indemnification hereunder; provided that the failure to provide such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The Indemnified Party will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice, or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party's written consent (to be granted or withheld at the Indemnified Party’s sole discretion), and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

5.3.   In the event any portion of the Services is held or believed by Tout, or any portion of the Subscriber Videos, Subscriber Data, or use of the Services by Subscriber or its Users, is held or believed by the Subscriber to infringe intellectual property rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Services are used or accessed, then in addition to any other rights in this Section 4, Tout (where the Infringing Materials are Tout’s), or Subscriber (where the Infringing Materials are Subscriber’s) shall, at its sole expense and at its option: (a) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (b) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; (c) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (d) if none of the foregoing remedies is commercially feasible, terminate the Agreement. This Section 5 contains each party’s sole and exclusive remedy, and each party’s entire liability, with respect to infringement or alleged infringement of third party intellectual property.

6.     LIMITATION OF LIABILITY       

 

TOUT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF TOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  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 MAY NOT APPLY TO THE PARTIES TO THE AGREEMENT. IN NO EVENT WILL TOUT’S TOTAL CUMULATIVE DAMAGES AND/OR OBLIGATIONS OF DEFENSE AND INDEMNITY EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES AND/OR THIRD PARTY CLAIM.

 

  1. NOTICES

 

Except as otherwise specified in the Agreement, all notices, permissions, and approvals hereunder will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim). Notices to Subscriber will be addressed to the system administrator designated by Subscriber for its Services account and, in the case of billing-related notices, to the relevant billing contact designated by Subscriber in the corresponding Order Form.

 

8       GENERAL

 

8.1    The Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. The Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If Subscriber is outside of the United States, the parties agree that the 1980 U.N. Convention on Contracts for the International Sale of Goods shall not govern rights and obligations of the parties under the Agreement.

 

8.2    The exclusive jurisdiction and venue for any action arising out of or relating to the Agreement will be a federal or state court in the City and County of San Francisco, California, and the parties hereby consent to such jurisdiction and venue. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.

 

8.3   Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety, without the consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of the Agreement upon written notice to the assigning party.  Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

8.4   The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, nor legal representative of the other for any purpose, and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.

 

8.5   The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

 

8.6   Neither party will be liable for any failure or delay in its performance under the Agreement due to causes, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism, failure of suppliers and governmental action, which are beyond its reasonable control.

 

8.7   Subscriber acknowledges that Tout may compile data and usage information that has been stripped of all personally identifiable information, and may use (both during and after the Term) such aggregated data to determine and report usage patterns, improve the Services, and for other purposes, provided that such use shall not identify Subscriber or any Users. 

 

8.8   The Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter, except to the extent there is a separate signed agreement between Subscriber and Tout governing Subscriber’s use of the Services. If there is such a separate signed agreement, the order of precedence shall be: (a) the signed agreement; and (b) this Agreement.  The Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

 

 

 

 

 

 

 

1 - YOUR ACCEPTANCE

A. By using or visiting the Tout website or any Tout products, software, data feeds, and services provided to you on, from, or through the Tout website (collectively the "Service") you signify your agreement to (1) these terms and conditions (the "Terms of Service"), (2) Tout's privacy notice, found at http://www.Tout.com/privacy and incorporated herein by reference, and (3) Tout's Community Guidelines, listed herunder. If you do not agree to any of these terms, the Tout privacy notice, or the Community Guidelines, please do not use the Service.

B. Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version http://www.Tout.com/terms). Tout may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.

2 - SERVICE

A. These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. "Content" includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of Tout, including but not limited to all products, software and services offered via the Tout website, such as the Tout channels, the Tout "Embeddable Player," Tout Widgets and other applications.

B. The Service may contain links to third party websites that are not owned or controlled by Tout. Tout has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Tout will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve Tout from any and all liability arising from your use of any third-party website.

C. Accordingly, we encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each other website that you visit.

3 - TOUT ACCOUNTS

A. In order to access some features of the Service, you will have to create a Tout account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Tout immediately of any breach of security or unauthorized use of your account.

B. Although Tout will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Tout or others due to such unauthorized use.

4 - GENERAL USE OF THE SERVICE - PERMISSIONS AND RESTRICTIONS

Tout hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:

A. You agree not to distribute in any medium any part of the Service or the Content without Tout's prior written authorization, unless Tout makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).

B. You agree not to alter or modify any part of the Service.

C. You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, Widgets, or authorized feeds from the API or other explicitly authorized means Tout may designate.

D. You agree not to use the Service for any of the following commercial uses unless you obtain Tout's prior written approval:
the sale of access to the Service;the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; orthe sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from Tout appears on the same page and is of sufficient value to be the basis for such sales.

E. Prohibited commercial uses do not include: 
uploading an original video to Tout, or maintaining an original channel on Tout, to promote your business or artistic enterprise;showing Tout videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; orany use that Tout expressly authorizes in writing.

F. If you use the Embeddable Player or Widgets on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the Tout website.

G. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the Tout servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Tout grants the operators of public search engines permission to use spiders to copy materials from the site 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. Tout reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.

H. In your use of the Service, you will comply with all applicable laws.

I. Tout reserves the right to discontinue any aspect of the Service at any time.

5 - YOUR USE OF CONTENT

In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.

A. The Content on the Service, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to Tout, subject to copyright and other intellectual property rights under the law.

B. Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a "download" or similar link displayed by Tout on the Service for that Content.

C. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.

D. You understand that when using the Service, you will be exposed to Content from a variety of sources, and that Tout is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Tout with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Tout, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.

6 - YOUR CONTENT AND CONDUCT

A. As a Tout account holder you may submit Content to the Service, including videos and user comments or meta-data. You understand that Tout does not guarantee any confidentiality with respect to any Content you submit.

B. You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Tout all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service. You also affirm nu using the service that Tout's media

C. For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to Tout, you hereby grant Tout a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Tout's (and its successors' and affiliates) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that Tout may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.

D. Video Release & Waiver - By registering for the service and agreeing to these terms and conditions you hereby consent to the recording, use and reuse, broadcast and/or re-broadcast by Tout and its affiliates of the Tout Service and/or any of their respective licensees, assigns, parents, subsidiaries or affiliated entities and each of the respective employees, agents, officers and directors (collectively "Releasees") of your voice (including, without limitation, speaking and singing voices and musical compositions created by you), actions, likeness, name, appearance and biographical material (i.e., collectively "Likeness") in any and all media now known or hereafter devised, worldwide in perpetuity, in or in connection with: (i) usage of the TOUT service (ii) the associated promotion and exploitation of the Service (in any form or media) thereof. You agree that Releasees may use all or any part of your Likeness, and may alter or modify it regardless of whether or not you are recognizable. You specifically agree that Releasees shall have full right to utilize any video you submit to the Tout service. You release Releasees from any and all liability arising out of their use of your Likeness and/or the Material. You agree not to make any claim against Releasees as a result of the recording or use of your Likeness and/or the Material (including, without limitation, any claim that such use invades any right of privacy and/or publicity and any claims based on defamation or libel or false light.Media partners, affiliates and/or customers of the Tout service that you explicitly release and acknowledge may re-broadcast content from the Tout Service may include but are not limited to the following companies: [ABC, NBC, CBS, CNN, ESPN, BRAVO, MSNBC, BBC, Al Jazeera, TNT, TBS, Current, FOX]

E. You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Tout all of the license rights granted herein.

F. You further agree that you will not submit to the Service any Content or other material that is contrary to the Tout Community Guidelines, currently found at the Tout Website which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations.

G. Tout does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Tout expressly disclaims any and all liability in connection with Content. Tout does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Tout will remove all Content if properly notified that such Content infringes on another's intellectual property rights. Tout reserves the right to remove Content without prior notice.

7 - ACCOUNT TERMINATION POLICY

A. Tout will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.

B. Tout reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or inappropriate content

C. Tout may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.

8 - DIGITAL MILLENNIUM COPYRIGHT ACT

A. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;dentification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Tout's designated Copyright Agent to receive notifications of claimed infringement is Michael Downing, 528 Folsom Street, San Francisco, CA 94105, email: [email protected], fax: 419-844-5532. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Tout customer service through http://www.tout.com/contact You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.

B. Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature;Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; andYour name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Tout may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Tout's sole discretion.

9 - WARRANTY DISCLAIMER

YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TOUT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. TOUT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. TOUT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TOUT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

10 - LIMITATION OF LIABILITY

N NO EVENT SHALL TOUT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT TOUT SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Tout from its facilities in the United States of America. Tout makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

11 - INDEMNITY

N NO EVENT SHALL TOUT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT TOUT SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Tout from its facilities in the United States of America. Tout makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

12 - ABILITY TO ACCEPT TERMS OF SERVICE

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.

13 - ASSIGNMENT

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Tout without restriction.

14 - GENERAL

You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over Tout, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Tout that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. These Terms of Service, together with the Privacy Notice at http://www.Tout.com/t/privacy and any other legal notices published by Tout on the Service, shall constitute the entire agreement between you and Tout concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Tout's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Tout reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND TOUT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.