Terms of Service


PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE OR USE OF THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEBSITE OR THE PRODUCTS.

ToutApp, Inc. ("Tout") provides businesses and organizations with a variety of products and related tools and resources including:

1.     Dynamic and real-time email content creation

2.     Creative optimization

3.     Analytics and reporting

4.     Usage monitoring

5.     Content authoring tools

6.     Integration with external web services and feeds

7.     APIs and web services

In addition to the products described above, Tout provides a variety of related offerings and services. The sum product offerings and any related offerings and services, including our mobile applications, are referred to in these Terms and Conditions of Use as the "Products."

Tout's Products may not be used for the sending of unsolicited email (sometimes called "spam") in violation of applicable law or for the transmission of illegal or prohibited content.

The following are the terms and conditions of use for access to this Website and use of the Products. By registering on ToutÕs sign-up page, by logging in to your Tout account, by accessing this Website or by accessing the Tout services via any API interface, you accept these Terms and Conditions of Use.  If you are accessing our offerings by contracting with a reseller, you are likewise agreeing to these Terms and Conditions of Use.

1. Copyright and Trademark Information

This Website, and the information which it contains, is the property of Tout and its affiliates and licensors, and is protected as a collective work and/or compilation by United States copyright law, trademark law, international conventions and other intellectual property laws. Subject to all terms and conditions of this Agreement, Tout grants you a nonexclusive, nontransferable right and license (without right to sublicense) to access and use the Products  solely for your internal business purposes.  Except as expressly provided herein, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Website, software, materials, or services in whole or in part. Tout product or service names or logos appearing in this Website are either trademarks or registered trademarks of Tout or its affiliates or licensors. The absence of a product or service name or logo from this list does not constitute a waiver of Tout's trademark or other intellectual property rights concerning that name or logo. You may not use or display any trademarks, service marks, or trade names owned by us or our licensors without our prior written consent.

2. Products Terms and Conditions

The Products are provided subject to these Terms and Conditions of Use, as they may be amended by Tout, and any guidelines, rules or operating policies that Tout may establish and post from time to time (collectively, the "Agreement"), including without limitation Tout's Privacy Policy, as linked from all email generated from Tout or otherwise furnished to you (unless otherwise stated, all references to the Agreement shall include the Privacy Policy). By posting updated versions of the Agreement on the toutapp.com Website, or otherwise providing notice to you, Tout may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at Tout's Website.  Your use of the Products following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. If at any time you do not agree to these terms and conditions, you must terminate your use of the Products. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination.

The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this agreement, in which case the terms ÒyouÓ or ÒyourÓ shall refer to such entity. This Agreement is void where prohibited by law, and the right to access the Website and use the Products is revoked in such jurisdictions. 

You must complete the registration form on the Tout sign up page in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide Tout's service personnel with remote access to your accounts and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by Tout or its personnel. If you are accessing or using the Products through a third party service or Website (a "Third Party Service"), you agree and acknowledge that Tout is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that Tout may terminate such Third Party Service's ability to interact with the Products at any time, with or without notice, and in Tout's sole discretion, with no liability to you or to the third party.

3. Representations and Warranties

You hereby represent, warrant and agree that:

      You will pay our usage fees for the Products.

      You are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act (collectively, the ÒCAN-SPAM ActÓ)) of any email message sent by you using the Products, and all messages you send using the Products will comply with all requirements of the CAN-SPAM Act.

      The Products will not be used for the sending of  unsolicited bulk email (sometimes called "spam") in violation of the CAN-SPAM Act or other applicable law.

      The Products will only be used for lawful purposes.

      The Products will not be used for hosting content, including images and documents, that infringes the intellectual property rights of others, including copyright, trademark and patent infringement, or that includes any obscene or libelous material or other material that violates any applicable law or regulation.

      You will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.

      You will import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products. Mere agreement of a person or entity to participate in a survey or register for an event is not consent to receive correspondence from you unrelated to such survey or event.  You hereby covenant that you shall not use any other lists in connection with your use of the Products.

      You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.

      You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.

      The "from" line of any email message sent by you using the Products will accurately and in a non-deceptive manner identify your organization, your product or your service.

      The "subject" line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.

      You will include in any email message sent by you using the Products your valid physical address, if required by law, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.

      In your use of the Products, you will represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.

      You will not interfere with or disrupt this Website or any related Tout Websites or servers or networks connected to this Website or any related Tout Websites.

      If you are accessing or using the Products through a Third Party Service, you will abide by this Agreement regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in this Agreement. 

4. Fees and Payment; Fee Schedule; Free Trial

4.1 Fees for the Products. If you choose to use Products other than ToutÕs free offering, you will be subject to monthly subscription fees in accordance with the Fee Schedule and related information (the "Fee Schedule").  If you access our Products by contracting with a reseller, you will have a separate fee and payment schedule.  In the event of any conflict between the fee and payment schedule set forth in these Terms, on the one hand, and your agreement with your reseller, on the other hand, the agreement with your reseller will govern.

4.2 Fees for Related Offerings and Professional Services.  If selected by you, you will also be billed for related offerings and service in accordance with the Fee Schedule. In addition, you may also purchase professional services to assist you with your account. Any professional services purchased by you are subject to this Agreement.

4.3 Fee Schedule; Discounts. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Tout and any applicable discounts. The Fee Schedule, including prices and any discounts, is subject to change at any time in Tout's sole discretion. Tout will use commercially reasonable efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule. If you receive special discounts through a marketing partner, those discounts may not be available if you cease to continue to be a customer of the marketing partner, in which case Tout's standard rates will apply. Tout may rely on information provided by the applicable marketing partner, if any, with respect to the status of your account.

4.4 Payment; State and Local Sales Tax. Payment for Products will be made by a valid credit card accepted by Tout. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize Tout to charge your credit card for such amounts on a regular monthly basis beginning at the end of your free trial period and continuing until such time as your account is terminated. If Tout is for any reason unable to effect automatic payment via your credit card, Tout will attempt to notify you via email and your Tout account will be disabled until payment is received. Amounts paid for the Products, including prepayments, are not refundable. Tout is required to collect and remit sales tax from its customers located in state and local jurisdictions where software delivered as a service is taxable and where Tout maintains a physical presence. Tout determines your local taxing jurisdiction based on the billing address that you list in the "My Account" section of your account.

5. Email, Permission Practices, Image Hosting and Prohibited Content

5.1 Subscriber Opt Out. If required under the CAN-SPAM Act, email messages sent in connection with the Products  may include an "unsubscribe" link (or instructions on how to unsubscribe) that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Tout. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your Tout account. Under the CAN-SPAM Act, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. In any event, you acknowledge and agree to comply with any and all applicable laws relating to your use of the Products.

5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot copy a Tout template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. This restriction also applies to customized templates prepared by Tout.  Emails that you send using the Products may generate spam complaints from recipients. You are responsible for ensuring that your emails do not generate a number of spam complaints in excess of industry norms. Tout, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Tout may terminate your use of its Products if Tout determines that your level of spam complaints is higher than industry norms (as determined by Tout).

5.4 Documents and Images. Documents and images hosted by Tout on Tout controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by Tout, Tout hereby grants to you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Products.

5.5 Prohibited Content. Tout prohibits the use of the Products or Website by any person or entity that:

      Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; dating services; adult "swinger" promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.

      Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.

      Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.

      Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.

      Posts or discloses any personally identifying information or private information about children.

      Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.

      Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.

      Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.

      Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.

      Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.

      Markets to third party voter registration lists.

      Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.

5.6 Right to Disable Access or Remove Content. Tout, at its own discretion, may immediately disable your access to the Products or remove all or a portion of your content, without refund, if Tout believes in its sole discretion that you have violated any of the policies listed above or this Agreement.

6. Restrictions and Responsibilities

6.1 No Rights in Software. The Products are made available to you solely as hosted by or on behalf of Tout, and nothing in this Agreement shall be construed to grant you any right to receive any copy of any software, documentation, or data related to the Products (ÒSoftwareÓ) You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or the Software; remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, publish, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.

Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by Tout in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.

6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that Tout perform such work at its standard professional services rates. Tout can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the CAN-SPAM Act and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although Tout has no obligation to monitor the content provided by you or your use of the Products, Tout may do so and may block any email messages, remove any such content, or prohibit any use of the Products that Tout believes may be (or is alleged to be) in violation of the foregoing.

6.4 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Tout. Tout may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of Tout, Tout may share your information with the marketing partner and the marketing partner may share related information with Tout. Except as described above, Tout will not provide your information, including your contact and account information, to third parties whom you have not authorized to receive such information, except (i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your Tout account was terminated due to unsolicited commercial email being sent from your Tout account. Tout will never sell or rent your contact lists to anyone without your permission, and will never utilize your subscriber or contact list for internal marketing or promotional purposes or for any purpose other than providing the service.  For more information, see our Privacy Policy https://toutapp.com/privacy.

6.5 Intellectual Property Matters. You agree that (i) Tout shall have the right to compile and analyze results and to prepare reports, studies, analyses and other work product resulting from the aggregate data compiled from you and other Tout customers  and (ii) Tout shall have exclusive ownership rights to, and the exclusive right to use, such compiled data and reports for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Services; provided, however, that Tout shall not distribute compiled data and reports in a manner that identifies you without first obtaining your prior written consent.

You agree that you will not upload or transmit any contact lists, communications or content of any type to this Website or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this Website or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to Tout or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to Tout by email, you agree such submission is non-confidential for all purposes. If you make any submission to this Website or if you submit any business information, idea, concept, invention or content (ÒFeedbackÓ) to Tout,  such Feedback shall become the property of Tout or its designee. Tout will not be required to treat any Feedback as confidential, and will not be liable for any ideas (including without limitation, Product, WebSite or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future Website, Products, or operations.

  You hereby  grant to Tout a revocable, non-exclusive, royalty-free, fully paid up, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform, and display your contact lists and the content you deliver to or through the Products (ÒCustomer InformationÓ) as required by Tout to offer and operate the Products and related services, including available offerings from third parties.

7. Termination

You may terminate this Agreement at any time by calling Tout Customer Support or, if you are accessing our Products by contracting with a reseller, contacting such reseller. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND TOUT IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.

Tout may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. Tout shall have no liability to you or any third party because of such termination or action.

Tout may delete any of your archived data within 30 days after the date of termination.

All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability. All payment obligations accrued prior to the effective date of termination shall survive termination.

If your account is classified (at Tout's sole discretion) as inactive for over 120 days, Tout has the right to permanently delete your subscriber data. Tout will use good faith efforts to contact you via email prior to taking any permanent removal actions.

8. Indemnification

You hereby agree to defend, indemnify and hold harmless Tout and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute or events you host using the Products or, (iii) otherwise arises from or relates to your use of the  Products. In addition, you acknowledge and agree that Tout has the right to seek damages when you use the  Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.  In addition, in the event that Tout is required to respond to a third party or law enforcement subpoena that is related to your use of the Products, Tout may in its sole discretion require you to reimburse Tout for its reasonable expenses associated with complying with such subpoena.

9. Warranty Disclaimer; Remedies

USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TOUT DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR MEET YOUR REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE SECURITY, RELIABILITY, TIMELINESS OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS, OR THAT ERRORS WILL BE CORRECTED. THE PRODUCTS ARE PROVIDED "AS IS" AND TOUT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

TOUT WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE WEBSITE, THE PRODUCTS, YOUR CUSTOMER INFORMATION OR OTHER CONTENT OF THE WEBSITE AND PRODUCTS.

Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for Tout to use commercially reasonable efforts to adjust or repair the Products or, if you are accessing the Products by contracting with a reseller, contacting the reseller.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL TOUT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "TOUT PARTIES") BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY (A) MATTER BEYOND THE TOUT PARTIESÕ REASONABLE CONTROL, OR (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF TOUT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, THE TOUT PARTIES ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF THE TOUT PARTIES TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM (OR, IF YOU ARE ACCESSING THE PRODUCTS BY CONTRACTING WITH A RESELLER, THE AMOUNT ACTUALLY RECEIVED BY TOUT RELATED TO YOUR CONTRACT), LESS ANY DAMAGES PREVIOUSLY PAID BY TOUT TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

11. Restricted Persons; Export of Products or Technical Data

You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify Tout within twenty-four (24) hours, and Tout shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to Tout.

You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

12. Third-Party Websites and Services

This Website may contain links to non-Tout Websites and access to certain third-party services, which may include, without limitation, social bookmarking services. These links and services are provided to you as a convenience, and Tout is not responsible for the content of any linked Website or use of any third-service service. Any non-Tout Website or service accessed from this Website is independent from Tout, and Tout has no control over, and assumes no responsibility for, the content, privacy policy, terms of use and practices of such Website or service.  Any such Website or service has terms of use and a privacy policy different than this Agreement and Tout's Privacy Policy.  In addition, a link to any non-Tout Website or access to a third-party service does not imply that Tout endorses or accepts any responsibility for the content or use of such Website or service.  By using any such Website or service, you expressly relieve Tout from any liability arising from your use of such third-party Website and service and any related content.  

13.  Monitoring Communications

You understand, agree and acknowledge that Tout may in its discretion, but is not obligated to, monitor or record any of your telephone conversations with Tout for quality control purposes, for purposes of training its employees and for its own protection. You acknowledge and understand that not all telephone lines or calls are recorded by Tout, and Tout does not guarantee that recordings of any particular telephone calls will be retained or capable of being retrieved.

14. No Implied Endorsements

In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Tout of that third party or of any product or service provided by a third party.

15. Copyright Infringement.

If you believe any materials accessible on or from, or created using, this Website or the Products infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from this Website or the Products by contacting Tout and providing the following information:

  1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
  2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
  3. Your name, address, telephone number and (if available) email address.
  4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
  5. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
  6. A signature or the electronic equivalent from the copyright holder or authorized representative.

In an effort to protect the rights of copyright owners, Tout maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this Website who are repeat infringers.

16. Username and Password

You are responsible for maintaining the security of your account, passwords, and files. Tout will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information as determined by Tout in its discretion, by email or by phone, or through a Third Party Service, if any, through which you access the Products. Tout has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Tout shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information

17. Miscellaneous

17.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

17.2 Tout and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

17.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Tout in any respect whatsoever.

17.4 This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other partyÕs written consent. However, without consent, each party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Tout may use contractors and other third party service providers in providing the Products. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.   

17.5 Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified herein, or at such other address designated in a subsequent notice.  All notices shall be in English, effective upon receipt.

18. Dispute Resolution

18.1 Choice of Forum and Law. Except to the extent applicable law, if any, provides otherwise, and except as set forth below under the Arbitration and Class Action Waiver provision, all disputes arising out of or in any way related to this Agreement or the Products shall be brought exclusively in state or federal court in New York County, New York. This Agreement, and all access to or use of the Products, shall be governed by New York law.

18.2 Arbitration and Class Action Waiver: IMPORTANT PLEASE READ CAREFULLY

18.3 General: You agree that, unless prohibited by applicable law, the parties to the Terms may elect to arbitrate - and require the other party to arbitrate - any claim arising out of or in any way related to this Agreement or the Products.

18.4 Important Notice And Limitations: If you or we elect to arbitrate a claim, neither you nor we will have the right to: (1) have a court or a jury decide the claim; (2) participate in a class action in court or in arbitration, either as a class representative or a class member; (3) act as a private attorney general in court or in arbitration; or (4) join or consolidate your claim(s) with claims of any other person or involving any other transaction.

18.5 Starting An Arbitration: To start an arbitration, you or we must give written notice of an election to arbitrate. This notice may be given after a lawsuit has been filed and may be given in papers or motions in the lawsuit. If such a notice is given, the claim shall be resolved by arbitration under this Arbitration Provision and the consumer or other applicable rules of the American Arbitration Administration then in effect using a single arbitrator appointed by the American Arbitration Association and approved by you and us. For more information please see www.adr.org

18.6 No Class Actions: Notwithstanding any language herein to the contrary, if you or we elect to arbitrate a claim, neither you nor we will have the right to: (1) participate in a class action in court or in arbitration, either as a class representative, class member or class opponent; (2) act as a private attorney general in court or in arbitration; or (3) join or consolidate your Claims with claims of any other person or involving any other transaction, and the arbitrator shall have no authority to conduct any such class, private attorney general or multiple-party proceeding.

18.7 Location And Costs: Any arbitration hearing that you attend will take place in a location that is reasonably convenient for you. If you cannot afford or otherwise do not want to pay the Administrator's or arbitrator's filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from the Administrator, we will consider in good faith any request by you for us to bear the cost of those fees. We will pay for our own attorneys, experts and witnesses and will pay the reasonable fees and charges of your attorneys, experts and witnesses if you win the arbitration, as determined by the arbitrator. We will pay any administration fee, arbitration fees and fees and charges of attorneys, experts and witnesses if and to the extent we are required to pay such fees and charges by law or in order to make this Arbitration Provision enforceable.

18.8 Effect Of Arbitration Award: Any court with jurisdiction may enter judgment upon the arbitrator's award. The arbitrator's award will be final and binding, except for: (1) any appeal right under the Federal Arbitration Act, 9 U.S.C. ¤¤1 et seq. (the"FAA"); and (2) claims involving more than $100,000. For claims involving more than $100,000, any party may appeal the award to a three-arbitrator panel appointed by the Administrator, which will reconsider anew any aspect of the initial award that is appealed. The panelÕs decision will be final and binding, except for any appeal right under the FAA. The costs of any appeal will be borne in accordance with the paragraph above captioned "Location And Costs."

18.9 Governing Law: This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA, and not by any state law concerning arbitration.

18.10 Survival, Severability, Primacy: This Arbitration Provision shall survive the termination of your use of the Products, the Terms themselves and, the fulfillment of all our and your obligations under the Terms.

Additional Information

If you have any questions about the rights and restrictions above, please contact Tout by email at team@toutapp.com.  If you access the Products by contracting with a reseller, please contact such reseller.

 

Copyright 2012 ToutApp, Inc.  All rights reserved.

Last Updated: August 2012