- PLEASE REVIEW THE TERMS CAREFULLY, PARTICULARLY SECTION 5 DETAILING THE AUTO-RENEWAL SUBSCRIPTION LANGUAGE AND SECTION 23 RELATED TO BINDING ARBITRATION. IF YOU DO NOT AGREE TO THE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORISED TO USE THE Shouted OFFERINGS IN ANY MANNER OR FORM.
- Shouted Pty Ltd (“Shouted,” “We,” “Our,” “Us” or “Company”) operates this Site. You agree to be bound by the following Terms, in their entirety, when you:
(1) Use, access, or visit the Site;
(2) Purchase or receive any good or service offered through the Site including, but not limited to, Shouted’s Subscription Service as defined in Section 5 (“Products”);
(3) Listen to, access, or view any of the text, audio, video, graphics, or other content featured on the Site;
(4) access links to or view Shouted’s social media pages or accounts on third party social media websites including, but not limited to, Facebook, Instagram, Pinterest, Twitter, Snapchat, and LinkedIn (“Social Media”);
(6) Purchase, redeem, or sign up to receive or send Shouted gift cards or gift certificates (including, for the purposes of these Terms, electronic versions of both) (“Gift Cards”) or Trial Offers, Sweepstakes, Contests, or Promotions(“Vouchers”, as defined in Section 9).
- You should print a copy of these terms and conditions for future reference.
- Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our Site.
The Finer Details
- By using this site you swear and affirm that you are over the minimum legal drinking age in your home country. Without exception, every person using the site or receiving a shipment of alcoholic beverages must be over the minimum legal drinking age. Parents: consider installation of a commercially available parental control service or program to prevent access to age-restricted content.
- All shipping and redemption costs are to be paid by the Buyer. Shouted makes no representation to the legal rights of anyone to ship or import beverages containing alcohol. By placing an order, you authorise Shouted to act on your behalf to deliver your order to you by SMS and/or email. The Buyer is responsible for all applicable excise, use, and sales taxes due their state related to the purchase of any taxable goods.
- When you give Shouted Pty Ltd your credit or debit card details you are confirming that you are the cardholder or have permission from the cardholder to use the card on this website. For your own safety we reserve the right to contact your card issuer for the purposes of carrying out security checks.
- We reserve the right to cancel any orders that cannot be fulfilled for any reason. If your order is cancelled we will contact you to explain why and refund any money you have paid us for that order.
- Shouted Pty Ltd makes every effort to ensure that the information on this website is accurate and current; however Shouted Pty Ltd provides this web site and its contents on an “as is” basis and expressly disclaims all representations or warranties of any kind with respect to this website and its contents. Shouted Pty Ltd also reserves the right to change price and availability information without notice. Shouted Pty Ltd shall have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or discount, or containing any other incorrect information or typographical errors.
- You agree not to do the following while using the Shouted Pty Ltd website:
a) Intentionally or unintentionally violate any applicable law or regulation or
b) access, tamper with, or use nonpublic areas of the Shouted Pty Ltd site or Shouted Pty Ltd’s computer systems.
- The Shouted Pty Ltd website may contain links to other web sites or resources. You acknowledge and agree that Shouted Pty Ltd is not responsible or liable for
(1) the availability or accuracy of such web sites or resources; or
(2) the content, advertising, or products on or available from such websites or resources. The inclusion of any link on the Shouted Pty Ltd website does not imply that Shouted Pty Ltd endorses the linked site.
- Shouted Pty Ltd will give you any necessary notices by posting them on the Shouted Pty Ltd site or by sending them to you by electronic mail, at Shouted Pty Ltd’s election. Shouted Pty Ltd reserves the right to update these terms and conditions, with no notice to you, at any time.
- DMCA notifications can be sent to firstname.lastname@example.org.
- All design, text, graphics, the selection and arrangement thereof, and all software are Copyright 2020 Shouted Pty Ltd, ALL RIGHTS RESERVED. Permission is granted to electronically copy and to print in hard copy portions of this site for the sole purpose of using this website as a shopping resource. Any other use of materials on this website without the prior written permission of Shouted Pty Ltd is strictly prohibited.
1. INFORMATION ABOUT US
- Shouted Pty Ltd is an Australian Private Company with an office at: 18 Union Street, Adelaide, South Australia 5000.
2. SERVICE AVAILABILITY AND YOUR STATUS
- The Site and Offerings are intended for use by individuals in the United States of America (“Serviced Countries”). At this time, we do not accept orders from individuals outside the Serviced Countries. As such, by placing an Order through our Site, you warrant that you:
(1) Are legally capable of entering into these Terms;
(2) Are at least 18 years old;
(3) Are a resident of a Serviced Country; and
(4) Are accessing the Site from a Serviced Country.
(1) changes to the procedures applicable to the resolution of disputes shall only apply to disputes which arise after the modified or additional provision is published on the Site; and
(2) changes to the prices or the manner in which Shouted shall bill customers shall only apply to products delivered after the modified or additional provision(s) is/are published on the Site.
- The latest Terms will be posted on the Site, and you should review the Terms prior to using any Products offered by Shouted and from time to time thereafter. By your continued use of Shouted, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Terms in effect at the time you access any Offerings offered by Shouted (other than for changes to the price/billing or dispute resolution pursuant to the preceding paragraph). All other amendments or modifications to the Terms shall be effective immediately upon publication on the Site.
4. ACCOUNT CREATION
- In order to utilise specific features on the Site, individuals will need to create an account with Shouted. Should you create an account with Shouted, you agree to:
(1) provide the accurate and up-to- date information, as well as updating the information as necessary;
(2) maintain the security of your password and accept the risks associated with access to your account which is not authorised by you; and
(3) notify us as soon as possible either at email@example.com if you believe there have been any breaches to the security of the Site or your account information.
5. SHOUTED’S SERVICES
Shouted’s Subscription Services. Our Subscription Services are a Product that is operated for and on behalf of the Venues that host the subscription and provide the Goods. The Subscription Services are an automatic, recurring monthly subscription to Shouted Products (“Subscription Service” or “Service”). As part of the Service, we offer a number of subscription products and options that you may choose from (“Plan”).
- On the 1st Each month you will digitally receive the Goods from each Subscription Service to which you have Subscribed (your “Digital Vouchers”) including the contents of your chosen Plans. You can find specific details regarding your Plan and the Shouted Service by accessing your account details via the Site.
Auto-Renewal Feature. THE SUBSCRIPTION SERVICE CONSISTS OF AN INITIAL CHARGE FOLLOWED BY RECURRING PERIODIC CHARGES AS AGREED TO BY YOU. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION HAS AN INITIAL AND RECURRING PAYMENT FEATURE AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO DEACTIVATION. SHOUTED MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORISATION FROM YOU, UNTIL YOU PUASE OR CANCEL YOUR SUBSCRIPTION VIA THE CUSTOMER PORTAL ON OUR SITE WWW.CLUBS.SHOUTED.IO. CANCELLATION WILL NOT AFFECT CHARGES SUBMITTED BEFORE SHOUTED REASONABLY COULD ACT. YOU CAN ALSO CHANGE YOUR PAYMENT METHOD VIA THE SITE WWW.CLUBS.SHOUTED.IO. IF YOUR PAYMENT DETAILS CHANGE, YOUR CARD PROVIDER MAY PROVIDE US WITH THE UPDATED PAYMENT DETAILS. WE RESERVE THE RIGHT TO USE THESE UPDATED DETAILS FOR FUTURE CHARGES IN ORDER TO HELP PREVENT ANY INTERRUPTION TO THE DELIVERY OF SERVICE.
ADDITIONALLY, BY SIGNING UP FOR ONE OR MORE OF OUR SUBSCRIPTION SERVICES YOU ARE AGREEING TO RECURRING PERIODIC PAYMENTS FOR AN INDEFINITE TIME UNTIL DEACTIVATED BY YOU OR US, ON THE SUBSCRIPTION TERMS OF THE CLUBS TO WHICH YOU HAVE SUBSCRIBED AND TO SHOUTED’S TERMS AS SET OUT HERE. THIS IS SUBJECT TO VARIATION IN ACCORDANCE WITH THIS SECTION. YOU CAN DEACTIVATE YOUR SUBSCRIPTION AT ANY TIME. YOU WILL NOT BE CHARGED FOR ANY DEACTIVATION. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR DEACTIVATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE A SUBSCRIPTION BY YOU.
FURTHERMORE, FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME LENGTH, AT THE THEN-CURRENT, NON-PROMOTIONAL SUBSCRIPTION RATE. YOU CAN DEACTIVATE OR PAUSE YOUR SUBSCRIPTION VIA THE SITE WWW.CLUBS.SHOUTED.IO. IF YOU DEACTIVATE, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
- Price Adjustments. We reserve the right to adjust prices in our sole discretion, at any time and without notice to you; provided, however, that we will provide you with at least ten (10) days’ advance notice of any price changes with your specific rate. Your acceptance of deliveries of the Products (the act of claiming your Goods) after such notice has been delivered to you will constitute your acceptance of such price changes, unless you cancel your subscription to the Service in accordance with these Terms. All prices shown on the Site are in Australian dollars unless indicated otherwise. Any applicable taxes and other fees or charges are included in the prices displayed. Prices, taxes or other fees may vary geographically. The digital claiming of your Goods after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription.
7. REPLACEMENT BEERS IN BEER BOXES AND PROMOTIONAL INCLUSIONS
- Given the perishable nature of some Goods, we reserve the right to discontinue a Product or to substitute any Good, all without notice. While we make every effort to ensure that you are provided with the very best Goods, these switches may occasionally be required. If you have any issues with any substitution, please notify the Venue hosting the Subscription before you redeem it. Additionally, please note that, on occasion, Shouted will include products from our partners in your digital delivery of Goods. If you have any questions or concerns about any additional products or materials in your digital delivery of Goods, please notify the Venue hosting that Subscription before redeeming.
8. GIFT CARDS
- You may purchase and/or otherwise receive Gift Cards through the Site. You must create or have an existing and valid account with Shouted in order to redeem a Gift Card. All accounts are subject to the Terms in all respects. Shouted Gift Cards may be redeemed on the Site. Redemption of Gift Cards will result in the application of a credit to your account in the amount of the Gift Card balance. Any Gift Card balance will be applied toward your purchase of Shouted Offerings until the Gift Card is depleted. Gift Cards are not redeemable for cash or credit, except to the extent required by applicable law. Shouted is not responsible for lost or stolen Gift Cards. Lost or stolen Gift Cards cannot be replaced (except as required by law). All sales of Gift Cards are final and non-refundable.
- Shouted may offer discount promotions, free/discounted trials, or other types of vouchers or coupons (“Vouchers”). In order to utilise the offer on the Voucher, users need to create an account through the Site and input their information and the code found on the Voucher (“Voucher Code”) to redeem. If you purchase any Voucher, that Voucher is deemed to have been sold at the time of payment for it. The discount found on the Voucher only lasts for the first week of your subscription plan, unless it specifically states otherwise on the Voucher or when you sign-up. Similarly, a Voucher may only be used once and may not be copied, reproduced, distributed, or published either directly or indirectly in any form or stored in data retrieval systems without our prior written approval. Additionally, Vouchers are only for first-time users of Shouted, unless the Voucher states otherwise. Shouted reserves the right to withdraw or deactivate any Voucher (other than one which has been purchased) for any reason, at any time. For the avoidance of doubt, and in accordance of the foregoing sentence, Shouted reserves the right to withdraw or deactivate any of your outstanding referral credits or similar Vouchers in the event your referral code is posted to a third party website (excluding your own social media profile(s) or blogs), or if you otherwise violate these Terms. Vouchers may only be redeemed through our Site, and not through any other website or method of communication. To use your Voucher, you will be required to enter its unique code at the online checkout and use of such code will be deemed to confirm your agreement to these Terms and any special conditions attached to the Voucher.
- Please note, pursuant to these Terms, at the expiration of the Voucher, you will be billed the standard rate for your Subscription Service/s on a recurring, monthly basis, unless you cancel your Plan prior to the end of the Voucher period with proper, advance notice to Shouted in accordance with these Terms. You may cancel your Shouted Subscription up to five (5) days before your first scheduled delivery that does not include the pricing found on the Voucher, pursuant to the Deactivation procedures found in Section 11.5.
- As a part of the verification process, Shouted may require a Customer to provide additional identification information. In addition, as a part of the verification process, the Customer authorises Shouted to charge to the Customer’s credit card a $1.00 authorisation charge (or such other amount identified to Customer at time of verification by Shouted), which amount will be refunded following successful authorisation.
10. STORE CREDIT
- Store credit expires after 60 days.
- Store credit may be revoked at any time.
11. DELIVERY & EXPIRY
- Subscription Recurring Dates and Digital Delivery. You will be charged and you will receive a Digital Delivery of your Goods on the 1st of every month (via SMS or email sent to the details provided to us by you), unless you pause your order, pursuant to these Terms, or there are extenuating circumstances, detailed in these Terms.
- Once Claimed, your Goods will be sent to your account on the Shouted app, which you must download from the App Store or Play Store. You cannot Redeem your Goods without a Device that is compatible with the Shouted app.
- Your goods will Expire 30 days after claiming.
- Your Goods MUST be claimed before the 1st of the month following a Digital Delivery or they will be forfeited.
- SHOUTED WILL NOT ISSUE A REFUND FOR FORFEITED GOODS.
- Some Subscription Services may or may not allow you to select which Goods you will receive. It is important to read the Product details carefully before purchasing.
- Deactivation Procedures. If you wish to deactivate your account and/or cancel or change an order, you must do so via the portal on the Site www.clubs.shouted.io before the day and time listed above for your respective delivery date. If you do so after your order locks, you will receive your Goods for that month, and the cancellation will take effect for the following Delivery Month.
- Delivery Specifics. In the case of technological failure which inhibits the ability to execute the Digital Delivery, or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur on a date other than your scheduled delivery day. If the Digital Delivery of your Goods is not feasible, we will cancel your delivery for the period so affected and issue you a credit, as determined in our sole discretion, or refund of a part or the whole of the purchase price for that Subscription.
- In most cases, we will attempt to deliver three times before taking further action. If you are unable to accept your digital delivery after all attempts are made and your order is returned, you will not be eligible for a refund on the order as beer is a perishable product and we have made a reasonable effort to deliver to you at the address you provided.
- You must ensure that your email address and mobile phone number are correctly entered into your Shouted account on the Site AND in your Shouted account on the Shouted App. Please ensure your mobile number country code is included in both.
12. FORCE MAJEURE
- We will not be liable or responsible for any failure to perform, or delay the performance of, any of our obligations that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes, but is not limited, to the following:
(1) Strikes, lock-outs, or other industrial action;
(2) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war, or threat or preparation for war;
(3) Fire, explosion, storm, flood, earthquake, subsidence, epidemic, or other natural disaster;
(4) Impossibility of the use of railways, shipping, aircraft, motor transport, or other means of public or private transport;
(5) Impossibility of the use of public or private telecommunications networks; and
(6) The acts, decrees, legislation, regulations, or restrictions of any government.
- Our performance under these Terms is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.
14. RETURN AND REFUND POLICY
- In the event that you are unhappy with any part of your Subscription/s you can reach out to us at firstname.lastname@example.org. However, we ask that you first take the matter up with the Venue that Hosts the Subscription Service. Please do so within five (5) days of the date you received the unsatisfactory item. We reserve the right to require either the return of the unsatisfactory Product, or a photograph of such, before any partial/full refund or credit will be issued.
15. PROPRIETARY RIGHTS
- Shouted is the owner and operator of the Site. Additionally, Shouted is the owner of, or duly licensed to utilise, all content, features, and functionality (including, but not limited to, all information, text, graphics, software, video, and audio, and the design, selection, and arrangement thereof) published on the Site, or any Shouted Offerings, all of which is protected by the United States and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
- Users are only permitted to use these materials in order to utilise Shouted’s Offerings for personal, non-commercial use. Any other use of Shouted’s materials including modification, distribution, or reproduction for purposes other than the personal usage of Shouted’s Offerings, without written approval from Shouted (which can be provided through email) is prohibited.
- Trademarks. “Shouted”, “Shouted Clubs”, all other Shouted marks and logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of Shouted or otherwise proprietary to Shouted and may not be used by you for any reason other than as expressly permitted by the Terms. All other trademarks, service marks, product names, and company names, logos, designs, or slogans appearing by and through the Shouted Offerings are the property of their respective owners and you do not acquire any ownership rights in or to such marks, logos, or names by using and/or accessing the Shouted Offerings.
- Copyright Policy. Shouted reserves the right to terminate any end-user’s access to the Shouted Offerings where that end-user infringes upon third-party copyrights. Please notify us at email@example.com if you believe any infringement has occurred.
16. PROHIBITED USES
- You may use Shouted Offerings only for lawful purposes and in accordance with these Terms and Conditions. You agree not to use the Offerings:
– In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from Australia or other countries).
– For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
– To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards.
– To transmit, or procure the sending of, any advertising or promotional material including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
– To impersonate or attempt to impersonate Shouted, an employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
– To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Shouted or users of the Site or expose them to liability.
- Additionally, you agree not to:
– Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site.
– Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose including monitoring or copying any of the material on the Site.
– Use any manual process to monitor or copy any of the material on the Site or for any other unauthorised purpose without our prior written consent.
– Use any device, software, or routine that interferes with the proper working of the Site.
– Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
– Attempt to gain unauthorised access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
– Attack the Site via a denial-of-service attack or a distributed denial-of- service attack.
– Otherwise attempt to interfere with the proper working of the Site.
17. NON-USER THIRD PARTY CONTENT
- We may display content, advertisements, and promotions from third parties through the Site, in mailings or emails containing information regarding other companies, or with or contained within Shouted’s Offerings (“Third Party Content”). The Third Party Content is not endorsed, adopted by, or controlled by Shouted, and we make no representations or warranties of any kind regarding such Third Party Content, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content through or on Shouted’s Offerings (including, but not limited to, our Site, Social Media, other Content, or Products) are solely between you and such third parties.
18. USER CONDUCT
- You agree that you will not violate any statute, regulation, intellectual property (including, but not limited to, copyright and trademarks), contractual obligations, other third party rights, or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Site. You agree that you will abide by these Terms and will not:
(1) display personal or confidential information related to any third party including, but not limited to, street addresses, email addresses, last names, telephone numbers, and URLs;
(2) attempt to access or use another user’s account unless permitted to do so, in writing, from both the user and Shouted;
(3) engage in any behaviour which is deemed to be harassment, threatening, stalking or predation of any other person;
(4) make any claim, statement, or assertion, or imply, that your claim, statement, or assertion is endorsed by Shouted without Shouted’s express written consent;
(5) engage in the commercial solicitation of other end-users;
(6) collect or record end-users’ personal information without their prior written consent;
(7) develop or use any third party applications that interact with any of Shouted’s Content, the Site without our prior written consent;
(8) use the Site in any way that prevents or inhibits other end-users from fully utilising the Site, or in a way that could overburden or interfere with the functioning of the Site in any manner;
(9) use any manual or automatic process, means, or interface (including, but not limited to robot, spider, script or, browser extension), which Shouted has not authorised to access the Site to retrieve or index data;
(10) decipher or reverse engineer any portion of the Site that may reveal source code or bypass items designed to obstruct, limit, or stop access to any Content, specific site within the Site, or code within the Site;
(11) access or attempt to access any portion or feature of the Site which you are not authorised to access, pursuant to these Terms or any subsequent agreements; or
(12) use the Site for any illegal purpose.
19. USER CONTENT
- Pursuant to the specifications located in these Terms, the Site, or any social media platforms on which Shouted has an official page or feed, may include, now or in the future, areas (“Interactive Areas”) that allow users to post content including but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, or other materials (“User Content”). Any User Content you post must, in its entirety, comply with all applicable federal, state, local and international laws and regulations, and these Terms.
- You understand and acknowledge that you are responsible for any User Content you submit or contribute and your use of any Interactive Areas of the Site, and you, not Shouted, have full responsibility for such content and use including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Site. You understand and acknowledge that User Content that you share with a third party through the Site or third party platforms will be viewable by others in accordance with the privacy settings you establish.
- User Content Standards. Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Website, you represent and warrant that:
– you own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
– you grant Shouted and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
– all of your User Content does and will comply with these Terms.
- By using the Interactive Areas of the Site, you further agree not to create, post, share or store any of the following:
(1) Any content that would encourage, either express or implied, conduct that could be deemed a violation of a statute or regulation;
(2) Any content that is determined, by Shouted in its sole determination, to be indecent, obscene, abusive, threatening, pornographic, or harassing;
(3) Any content that violates the proprietary rights of a third party;
(4) Any content that contains confidential information;
(5) Any content that impersonates, or misrepresents your affiliation with, any person or entity without their express permission;
(6) Any content that contains any viruses or other computer code, files, or programs designed to harm, inhibit the operative ability of, or destroy part/all of the Site;
(7) Any content that contains solicitations including, but not limited to, any advertisements, promotional materials (other than those directly related to Shouted), and political campaign requests;
(8) Any content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Site, Products, or Offerings, or that may expose Shouted or others to any harm or liability of any type.
- Although we are not required to regulate User Content, we reserve the right, in our sole discretion, to monitor, edit or remove User Content posted or stored on the Site for any reason. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
- Rights in User Content. We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Site, to our pages or feeds on third party social media platforms (e.g., Shouted’s Facebook page, Instagram page, or Twitter feed), you hereby:
(1) grant Shouted and its affiliates and subsidiaries a nonexclusive, royalty-free, transferable, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes;
(2) represent and warrant that
(a) you own and control all of the rights to the User Content or you otherwise have the lawful right to post such User Content,
(b) the User Content is non-confidential and you authorise Shouted to use such User Content for the purposes described in these Terms,
(c) the User Content is accurate and not misleading or harmful in any manner, and
(d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
- You agree to defend, indemnify and hold harmless Shouted, our affiliates, service providers, and licensors and their respective directors, officers, agents, contractors, partners, licensors, representatives, suppliers and employees, from and against any loss, liability, threatened or actual claim, demand, damages, costs and expenses, (including reasonable legal fees) arising out of or in connection with your use of the Site, the Products or any Offerings, or any information obtained therefor other than as expressly authorised in these Terms. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate as fully as reasonably required by us. You agree to promptly notify Shouted of any third-party claims, cooperate with Shouted in defending such claims, and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Shouted.
21. LIMITATION OF LIABILITY; RELEASE
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SHOUTED, ITS AFFILIATES (INCLUDING, BUT NOT LIMITED TO, THEIR LICENSORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS, REPRESENTATIVES AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY/PUNITIVE DAMAGES. THIS LIMITATION SHALL INCLUDE, BUT IS NOT LIMITED TO, DAMAGES RELATED TO PERSONAL INJURY; PAIN AND SUFFERING; EMOTIONAL DISTRESS; BUSINESS INTERRUPTION; LOSS OF PROFITS, REVENUE, BUSINESS OR ANTICIPATED SAVINGS, USE, GOODWILL, DATA; AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE) BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORSEEABLE.
- ADDITIONALLY, IN NO EVENT SHALL SHOUTED BE LIABLE FOR DISPUTES ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT, CONTENT OF LINKED THIRD PARTY SITES), OR THE ORDERING, RECEIPT, OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO,ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM SHOUTED, OR FROM EVENTS BEYOND SHOUTED’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS,BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE SHOUTED PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH SHOUTED PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.
- SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF SHOUTED SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- THE LIMITATIONS SET FORTH IN THIS SECTION 20 SHALL NOT AFFECT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW/JURISDICTION, SUCH AS LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR ACTS OR OMISSIONS, OR FOR OUR GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
22. MODIFICATIONS TO THE SITE AND PRODUCTS
- We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the rates, delivery, or provision of the Products at any time.
23. DISPUTE RESOLUTION & BINDING ARBITRATION
- PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SHOUTED AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Arbitration Is Binding. YOU AND SHOUTED ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
- ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND SHOUTED ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF PRODUCTS OR OFFERINGS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- This shall not apply to any disputes arising from Section 18, disputes in which a party seeks to resolve an issue in small claims court, seeks injunctive relief, or other equitable relief related to the use of proprietary rights.
- Preliminary Resolution Attempts. You agree to notify Shouted within forty-five (45) days of the occurrence or alleged occurrence of any dispute that could rise to become a small claim or claim that can be arbitrated according to these Terms. Notification can occur by contacting Shouted at firstname.lastname@example.org. Upon receipt of the notification, both parties shall attempt to resolve the issue within thirty (30) days. If we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration in accordance with these Terms.
- Waiver of Class Actions & Class Arbitrations. To the fullest extent permitted by law, you agree to arbitration on an individual basis, and to give up any rights to bring, join, or participate in any class action or representative action with respect to any claim, dispute or controversy that you may have against Shouted. In any such dispute, NEITHER PARTIES ARE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Unless both you and Shouted agree otherwise, the arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit, and to pay the attorney’s fees and court costs that Shouted incurs in seeking such relief.
- This provision preventing you from bringing, joining, or participating in class action lawsuits and class arbitrations: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. The arbitral tribunal has no power to consider the enforceability of this class action and class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
- If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Arbitration Proceedings. For claims of Ten Thousand Dollars ($5,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone, or based only on submissions. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
- The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
- Opt Out Rights. You may pursue your claim in small-claims court rather than arbitration (as it pertains to Section 24) if you provide written notice of this intention within sixty (60) days of the day you agreed to (or are determined to have agreed to) these Terms. If you choose to opt out, send written notice to: email@example.com. Please include your name, contact information, and a clear statement that you would like to opt out of the provisions related to binding arbitration. Please note that, all other provisions of the Terms including Section 25, will still apply. The Arbitration or smalls-claim court proceeding will be limited solely to your individual dispute.
24. GOVERNING LAW AND VENUE
- All matters relating to these Terms, your access to and use of the Site, and your order, receipt, and use of the Products, and any dispute or claim arising therefrom or related thereto shall be governed by and construed in accordance with the laws of the State of South Australia, without regard to conflict of law rules or provisions (whether of the State of South Australia or any other jurisdiction). Any dispute arising out of, or related to, these Terms or Shouted’s Offerings that is not subject to arbitration or cannot be heard in small claims court, shall be resolved exclusively in the state or federal courts of Australia. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
25. TERMINATION AND SURVIVAL
- Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate or suspend your right to access or use the Site and to order, receive and use the Products, at any time and for any or no reason including, without limitation, any violation of these Terms. You acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, for which you have received a corresponding delivery, to the fullest extent permitted by applicable law.
26. SEVERABILITY AND WAIVER
- If any of these Terms and Conditions or any provisions of a Contract are determined by any competent jurisdiction to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.
- No waiver by Shouted of any provision in these Terms and Conditions shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and any failure to assert a right or provision under these Terms does not constitute a waiver of such right or provision.
- These Terms and any document expressly referred to in them constitute the whole agreement between you and Shouted, and supersede all previous discussions, correspondence, negotiations, arrangements, understandings, or agreements between us relating to the subject matter of any Contract. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Shouted. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
28. REFERRAL PROGRAM
- Qualified Referral
A Qualified Referral is defined as a purchase of a Subscription Service by a new customer (a “Referred Customer”) who arrives to our website by clicking your Refer-a-Friend program link. You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not counted as additional Qualified Referrals.
- Referred Customer
The Referred Customer and the Referrer cannot be the same person (for example, by using a different email address).
- Referral Rewards
For you to earn referral rewards as a Referrer, the Referred Customer must complete an order including a SUB Home Tap, minus all fees including taxes, discounts, shipping, returns, chargebacks, fraudulent payments, and/or other 3 rd party fees.
- Reward Payments
The maximum Qualified Referrals earned per calendar year may be no more than 50 Qualified Referrals without written approval from Shouted. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.
Eligibility is limited to individuals only. Shouted’s Refer-a-Friend Program cannot be used by businesses for affiliate lead generation as determined in Shouted’s sole discretion. (Corporations are not people, my friend!)
- No Spam
You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from Shouted’s Refer-a-Friend program.
- Right to Close Accounts
Shouted reserves the right to close the account(s) of any Referrer and/or Referred Customer and to request proper payment if the Referrer and/or Referred Customer attempts to use the Shouted Refer-a-Friend program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.
- Right to Cancel Program or Change Terms
Shouted reserves the right to cancel the Refer-a-Friend Program or to change these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.