Last Updated: February 10, 2020
1. MODIFICATION OF THIS AGREEMENT
We may change, modify, add or remove portions of this Agreement (each, an “Update”) at any time and in our sole discretion without prior notice and such Updates will be effective immediately. If we make Updates to this Agreement, we will change the “Last Updated” date above. Your continued use of the Services will confirm your acceptance of the Update. We encourage you to frequently review this Agreement to ensure you understand the latest terms and conditions associated with use of the Services. If you do not agree to the Update, you must discontinue using the Services.
2. OWNERSHIP; PROPRIETARY RIGHTS
The Services, including all information and materials contained therein, is owned and operated by Spout, or other parties as indicated. All content, images, illustrations, designs, names, products, services, icons, photographs, video clips, typefaces, source and object code, format, queries, algorithms, visual interfaces, HTML, information, graphics, design, look and feel, compilation, and all other elements (whether written or otherwise) of the Services (collectively, the “Materials”), as well as their selection and arrangement, and all intellectual property and other rights relating to Materials, are protected by, as appropriate by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Services are the property of Spout or its subsidiaries or affiliated companies and/or third-party licensors. Except as expressly authorized by Spout under this Agreement, you agree not to directly or indirectly sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
3. GUIDELINES; USAGE RULES; PROHIBITED CONDUCT AND USES
3.1. YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL NOT ENGAGE IN THE PROHIBITED CONDUCT AND USES LISTED BELOW (THE “GUIDELINES”). YOU WILL NOT:
3.1.1. use the Services or any information displayed within the Services to stalk, harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect or store location or personal information about other Users;
3.1.2. use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data security and privacy, and import or export control;
3.1.3. make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures, surveying or requests to participate in surveys or studies;
3.1.4. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Services accounts of other Users;
3.1.5. misrepresent the source, identity or content of information transmitted via the Services;
3.1.6. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services;
3.1.7. intentionally interfere with or damage operation of the Services or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, invalid data, keyloggers, spyware, Trojan horses, time bombs, or other malicious or harmful code, or imposing an unreasonable or disproportionately large load on our infrastructure;
3.1.8. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, harmful to minors, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
3.1.9. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
3.1.10. attempt to gain unauthorized access to the Services, or any part of it, other accounts, computer systems or networks connected to the Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
3.1.11. hack, spam or phish Spout or any Users of the Services; or
3.1.12. hold Spout responsible for your use of the Services.
Please let us know about any inappropriate behavior that you become aware of within the Services. If you find something that violates this Agreement or these Guidelines, let us know by sending us an e-mail to [email protected]. We reserve the right, in our sole and absolute discretion, to deny you or anyone access to the Services without notice.
4. USAGE; REFUSAL OR SUSPENSION OF SERVICE
4.1. SPOUT RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE SERVICES. ACCORDINGLY, SPOUT ALSO RESERVES THE RIGHT TO DISABLE ANY USER’S USE OF OR ACCESS TO THE SERVICES.
4.2. You alone are responsible for your involvement with other Users. You agree that Spout will not be responsible for any loss or damage incurred as the result of any such interactions.
5. THIRD-PARTY SERVICES, PRODUCTS AND SERVICES; LINKS
The Services may include links to other services (“Third Party Services”) solely as a convenience to Users. Spout does not endorse any such Third Party Services or the information, material, products or services contained on other linked Services or accessible through other Third Party Services. Furthermore, Spout makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through Third Party Services. Access and use of Third Party Services, including information, material, products and services on Third Party Services or available through Third Party Services is solely at your own risk.
This paragraph applies to any version of any application that you acquire from the Apple App Store. This Agreement is entered into between you and Spout. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to any such application acquired from the Apple App Store. Spout, not Apple, is solely responsible for the Services and any such application and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
7. USER RESTRICTIONS
Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer any Services; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer any Services to any third party or use any Services to provide time sharing or similar services for any third party; (iii) make any copies of any Services; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of any Services, features that prevent or restrict use or copying of any content accessible through any Services, or features that enforce limitations on use of any Services; or (v) delete the copyright and other proprietary rights notices on any Services.
8. VIOLATIONS; TERMINATION
You agree that Spout, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate your use of any Services or any portion thereof at any time. You agree that any termination of your access to any Services may have or portion thereof may be effected without prior notice, and you agree that Spout will not be liable to you or any third-party for any such termination. Spout does not permit copyright infringing activities on any Services, and reserves the right to terminate access to any Services, and remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of any Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Spout may have at law or in equity.
9. DISCLAIMERS; NO WARRANTIES
9.1. THE SERVICES ARE MADE AVAILABLE “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. SPOUT, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
9.2. SPOUT AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9.3. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold Spout (and its affiliated companies, contractors, employees, director, officers, agents, and suppliers, licensors and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (i) your use or misuse of the Services generally; (ii) any violation of the rights of any other person or entity by you; (iii) any breach or violation by you of this Agreement. Spout reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
11. LIMITATION OF LIABILITY AND DAMAGES
11.1. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL SPOUT (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF SPOUT OR AN SPOUT AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.2. IN NO EVENT SHALL SPOUT (OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, DIRECTORS, OFFICERS, AGENTS’, SUPPLIERS’, OR THIRD-PARTY PARTNERS’, LICENSORS’ OR SUPPLIERS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED FIFTY U.S. DOLLARS.
11.3. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT SPOUT’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
12. BENEFIT OF THE BARGAIN
YOU ACKNOWLEDGE AND AGREE THAT SPOUT HAS OFFERED THE SERVICES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SPOUT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SPOUT. SPOUT WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
You hereby release and forever discharge us (and our directors, officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any interactions with, or act or omission of the Services; or (ii) any third party product, services, and links included on or accessed through any Services.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
14.1. Governing Law.This Agreement shall be governed by and construed in accordance with the laws of Delaware, without giving effect to any principles of conflicts of law.
14.2. Jurisdiction. Except as set forth below, you agree that any action at law or in equity arising out of or relating to this Agreement or any Services shall be filed only in the state or federal courts of Delaware and you hereby consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Nothing in this Agreement shall prevent Spout from seeking injunctive relief in a court of competent jurisdiction.
14.3. Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
14.4. Notices. Spout may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings provided through any Services. You must provide notice to Spout by email or regular mail using the information in Section 15 below.
14.6. Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification, as well as any other provisions which by their nature are intended to survive expiration or termination of this Agreement, do and hereby survive any expiration or termination of this Agreement or any termination of your use of access to any Services.
14.7. Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. The word “including” means “including without limitation”. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both you and Spout, or by a change to this Agreement or the Guidelines.
14.8. Claims. YOU AND SPOUT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. CONTACT INFORMATION
3575 Ringsby Ct., Suite 416
Denver, CO 80216
Email: [email protected]