These Get Shouting Terms of Service (this “Agreement”) govern the company’s or entity’s (on whose behalf you entered into this Agreement) (“Customer”) use of the social media engagement automation technology platform known as “Get Shouting” (as more fully described below as the Get Shouting Platform) as made available via the www.getshouting.com website (“Site”) by Artless Industries, Inc. (“Artless”). Artless and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: CUSTOMER IS AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN CUSTOMER AND ARTLESS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 13 (DISPUTE RESOLUTION FOR INDIVIDUALS) AND SECTION 14 (DISPUTE RESOLUTION FOR ENTITIES) BELOW FOR DETAILS REGARDING ARBITRATION.
1. AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective, and Customer agrees to be bound by this Agreement, on the date that Customer accepts this Agreement (“Effective Date”), which is the date that Customer first checks the box to accept this Agreement, clicks “Create Account,” or otherwise creates an account on the Get Shouting Platform (an “Account”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AS A BUSINESS ENTITY, AND SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH BUSINESS ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND “CUSTOMER” REFERS TO THAT BUSINESS ENTITY.
2. DEFINITIONS.
(a) “Authorized Users” means employees, agents, and contractors authorized by Customer to use the Get Shouting Platform.
(b) “Artless IP” means the Get Shouting Platform, the underlying software provided in conjunction with the Get Shouting Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Get Shouting Platform, Documentation and Aggregate and Analytics Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(c) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(d) “Get Shouting Platform” means the online technology platform which is designed to enable businesses to create, schedule, and publish optimized content across supported social media channels from a single dashboard to increase social media reach and engagement.
3. PRIVACY NOTICE.
Artless may process personal data about Authorized Users’ use of the Get Shouting Platform (“Account Data”) in accordance with its Privacy Notice, available at getshouting.com/legal/privacy-policy.html. Account Data is not Customer Materials.
4. ACCESS AND USE.
(a) Get Shouting Platform. Subject to the terms and conditions of this Agreement, Artless hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 15(b)) right to use (and permit Authorized Users to and use) the Get Shouting Platform in accordance with the terms of this Agreement.
(b) Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Get Shouting Platform; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Get Shouting Platform, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Get Shouting Platform to any other person or entity, or otherwise allow any person or entity to use the Get Shouting Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Get Shouting Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law; (v) interfere with, or disrupt the integrity or performance of, the Get Shouting Platform, or any data or content contained therein or transmitted thereby; (vi) access or search the Get Shouting Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Get Shouting Platform features provided by Artless for use expressly for such purposes; (vii) use the Get Shouting Platform or any other Artless Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Get Shouting Platform; or (viii) use the Get Shouting Platform for or in connection with any third-party websites, platforms, or content, including without limitation generating content or other output based upon any third-party website or platform (e.g., by inputting a URL of a third-party website into the Get Shouting Platform to generate content).
(c) Authorized Users. Customer may permit Authorized Users to use the Get Shouting Platform in accordance with the terms of this Agreement, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Get Shouting Platform and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 4(b). Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Get Shouting Platform in accordance with customary security protocols, and will promptly notify Artless if Customer knows or reasonably suspects that any user name and/or password has been compromised.
(d) Data Processing Addendum. Each party shall comply with the Data Processing Addendum attached as Exhibit A, the terms of which are incorporated herein by reference.
(e) Ownership of Artless IP. Subject to the limited rights expressly granted hereunder, Artless reserves and, as between the Parties will solely own, the Artless IP and all rights, title and interest in and to the Artless IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(f) Feedback. From time to time Customer or its employees, contractors, representatives may provide Artless with suggestions, comments, feedback or the like with regard to the Get Shouting Platform (collectively, “Feedback”). Customer hereby grants Artless a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Artless’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Get Shouting Platform. For clarity, Feedback is not considered Confidential Information (as defined below).
(g) Third-Party Services. Certain features and functionalities within the Get Shouting Platform may (i) allow Customer and its Authorized Users to interface or interact with, access and/or use compatible, and/or (ii) integrate with and depend upon third-party services, products, technology and content (collectively, “Third-Party Services”). Artless does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Get Shouting Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.
(h) Free Trials. Artless may make available to Customer the Get Shouting Platform, or certain parts thereof, on a “free trial” basis (“Free Trial”). Artless provides all Free Trials on an “AS IS” basis without warranty of any kind, and may terminate or suspend the availability of any Free Trial at any time. Notwithstanding anything in this Agreement to the contrary, Artless makes no commitments with respect to any Free Trial, including any commitment to maintain the availability of such Free Trial, or otherwise with respect to support, service levels, security, compliance or privacy. Customer acknowledges that its use of any Free Trial is at Customer’s sole risk and discretion. Notwithstanding anything to the contrary under this Agreement (including without limitation Sections 8 and 11), Vendor hereby disclaims all liability and responsibility for, and shall not be liable for any damages, losses, claims, or causes of action related to or in connection with, any and all Free Trials.
5. FEES.
Certain features or functionality of the Get Shouting Platform require Customer to pay a fee through the purchase of a subscription (“Subscription”), and if Customer wishes to use such features or functionality, then Customer agrees to pay the fees associated with such Subscription tier as Customer selects via the Get Shouting Platform (currently set forth at https://getshouting.com/pricing/index.html), plus any applicable taxes and other charges (“Subscription Fees”). Customer may also have the ability to purchase additional volume usage, such as additional permitted hours of video processing, additional seats for use, or otherwise, for and via the Get Shouting Platform (“Additional Use Fees”).
(a) Transactions; Payments. If Customer purchases a Subscription or Additional Use Fees (a “Transaction”), Customer expressly authorizes Artless (or Artless’ third-party payment processor) to charge Customer for such Transaction. Artless may request, on behalf of its third-party payment processor (e.g., Stripe), from Customer additional information relevant to Customer’s Transaction, including Customer’s credit card number, the expiration date of its credit card and Customer’s email and postal addresses for billing and notification (such information, “Payment Information”), and in such case Customer agrees to promptly furnish such Payment Information to Artless’ then-current third-party payment processor. Customer represents and warrants that it has the legal right to use all payment method(s) represented by any such Payment Information. When Customer initiates a Transaction, Customer authorizes Artless’ to provide Customer’s Payment Information to its third-party payment processor so Artless can complete Customer’s Transaction and to charge Customer’s payment method for the type of Transaction corresponding with the Subscription which Customer has selected (plus any applicable taxes and other charges). Customer may need to provide additional information to verify its identity before completing a Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, Customer agrees to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to Customer. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
(b) Subscriptions. Subscriptions are offered on either a monthly or annual term basis. If Customer purchases a Subscription, Customer will owe, as applicable, the monthly or annual Subscription Fees, charged on a monthly or annual basis, at the beginning of the Subscription and each month or year thereafter, at the then-current Subscription Fees for such Subscription. BY PURCHASING A SUBSCRIPTION, CUSTOMER AUTHORIZES ARTLESS TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If Customer purchases a Subscription, Artless’ third-party payment processor will automatically charge Customer each month beginning on the date of commencement of the Subscription, using the Payment Information which Customer has provided until Customer cancels its Subscription. For both monthly and annual Subscriptions, prior to the renewal of each Subscription, in accordance with applicable law, Artless will send you a reminder with the then-current Subscription Fees. By agreeing to these Terms and electing to purchase a Subscription, Customer acknowledges that its Subscription has recurring payment features and Customer accepts responsibility for all recurring payment obligations prior to cancellation of its Subscription by Customer or Artless pursuant to Section 5(c) or 10(b).
(c) Cancelling Subscription. CUSTOMER’S PURCHASE IS FINAL AND CUSTOMER WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF ANY SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, Artless reserves the right to cancel one or more Transactions for any reason; if Artless cancels a Transaction, Artless will refund any payment remitted by Customer to Artless for such Transaction. Without limiting the foregoing, Customer may cancel its Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period (e.g., at the end of the applicable annual Subscription term). EXCEPT AS SET FORTH ABOVE, CUSTOMER WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD, OR ANY ADDITIONAL USE FEES, AT THE TIME OF CANCELLATION. Customer may cancel its Subscription (effective at the end of the then-current Subscription period) via its Account settings on the Get Shouting Platform. Customer is responsible for all Subscription Fees incurred for the then-current Subscription period and all Additional Use Fees. If Customer cancels, Customer’s right to use the Get Shouting Platform will continue until the end of the then-current Subscription period and will then terminate without further charges.
(d) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Artless hereunder, other than any taxes imposed on Artless’ income.
6. CUSTOMER MATERIALS; OUTPUT.
Customer hereby grants Artless and its licensors a non-exclusive, worldwide, royalty-free right and license to use, ingest, analyze, reproduce, display, perform and modify (A) the Customer Materials solely (i) for the purpose of hosting, providing, and supporting the Get Shouting Platform and generating Output; (ii) for the purpose of sharing Customer Materials with Artless’ third-party service providers (e.g., its third-party artificial intelligence technology providers) to provide the Get Shouting Platform and generate Output for Customer; and (iii) to generate Aggregate and Analytics Data; and (B) Output solely for the purpose of hosting, providing, and supporting the Get Shouting Platform. As between Customer and Artless, Customer owns and retains all right, title and interest in and to all Customer Materials and its Output. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Get Shouting Platform or to Artless in connection with Customer’s use of the Get Shouting Platform, including without limitation Customer’s social media posts and communications on its social media accounts and channels utilizing the Get Shouting Platform, but excluding, for clarity, Aggregate and Analytics Data and any other information, data, data models, content or materials owned or controlled by Artless and made available through or in connection with the Get Shouting Platform. “Aggregate and Analytics Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; (ii) Customer’s and/or its Authorized Users’ use of the Get Shouting Platform, including, without limitation, any usage data or trends with respect to the Get Shouting Platform; or (iii) analytics, insights, performance, and related information which Artless collects or generates based upon the content generated by the Get Shouting Platform from Customer’s use thereof (e.g., performance metrics, response rates, and purchase completions).
7. CONFIDENTIAL INFORMATION.
(a) Confidentiality. “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Get Shouting Platform will be deemed Confidential Information of Artless. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Artless may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate and Analytics Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
8. PUBLICITY.
Customer hereby grants Artless a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (“Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Get Shouting Platform; and (ii) Artless’ marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Artless and in case studies. All goodwill and improved reputation generated by Artless’ use of the Customer Marks inures to the exclusive benefit of Customer.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
(a) Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.
(b) Customer Additional Representations. Customer represents and warrants that (i) Artless’ use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third party; (ii) Customer has obtained and will continue to have all required consents for the use of Customer Materials contemplated under the Agreement including, without limitation, those consents required under the Telephone Consumer Protection Act and related state laws for text messages sent by or on behalf of Customer via the Get Shouting Platform; (iii) Customer will comply with all applicable laws; and (iv) Customer owns, or has full and unrestricted rights to, all websites and platforms upon which Customer generates content using the Get Shouting Platform, including without limitation with regard to all content on such websites and platforms.
10. DISCLAIMERS.
(a) General. THE GET SHOUTING PLATFORM AND OTHER ARTLESS IP ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Artless makes no warranty that the Get Shouting Platform or other Artless IP will meet Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. Artless makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Get Shouting Platform or other Artless IP.
(b) AI/ML Disclaimer. DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, ANY OUTPUT MAY NOT BE UNIQUE AND THE GET SHOUTING PLATFORM MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CUSTOMER OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE GET SHOUTING PLATFORM MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE CUSTOMER MATERIALS INPUTTED INTO THE GET SHOUTING PLATFORM AND CUSTOMER’S COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ARTLESS WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR OR IN CONNECTION WITH ANY CUSTOMER MATERIALS OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, OUTPUT, OR THEIR USE. CUSTOMER WILL EVALUATE THE CONTENT, NATURE, TONE, AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE-CASE, INCLUDING BY ALWAYS USING HUMAN REVIEW OF THE OUTPUT AND BY USING CUSTOMER’S BEST HUMAN JUDGMENT IN CONNECTION THEREWITH. FOR PURPOSES OF THIS AGREEMENT, “OUTPUT” MEANS ANY DATA, CONTENT, INFORMATION, RESPONSES, SUGGESTIONS, OR OTHER OUTPUT GENERATED BY THE GET SHOUTING PLATFORM IN CONNECTION WITH CUSTOMER’S USE THEREOF.
11. TERM AND TERMINATION.
(a) Term. This Agreement shall commence on the Effective Date and will remain in effect unless and until terminated in accordance with the terms herein (the “Term”).
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Further, Artless may suspend or terminate Customer’s access to and use of the Get Shouting Platform, and/or Customer’s Account, in its sole discretion at any time with notice to Customer, whereby this Agreement will automatically terminate. If Customer has not purchased a Subscription, Customer may cancel its Account at any time via its Account settings on the Get Shouting Platform, whereby this Agreement will terminate effective on the date which Artless notifies Customer that its Account has been cancelled. If Customer has purchased a Subscription, Customer may not cancel its Account or terminate this Agreement for convenience unless it has cancelled its Subscription in accordance with Section 5(c).
(c) Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2, 3, 4(b), 4(d), 4(e), 4(f), 6, 7, 9(c), 10(c), 10(d), 11, 12, 13, 14, and 15.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted to Customer pursuant to Section 4(a) will terminate; (ii) Customer will return or destroy, at Artless’ sole option, all Artless Confidential Information in its possession or control, including permanent removal of such Artless Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Artless’ request, certify in writing to Artless that the Artless Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted; and (iii) Artless will use commercially reasonable efforts to delete all Customer Materials within Customer’s Account, except for Customer Materials which Artless retains pursuant to its backup or archival policies and procedures or to comply with applicable law. No expiration or termination will affect Customer’s obligation to pay all fees (including without limitation Subscription Fees) that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
12. LIMITATION OF LIABILITY.
(a) Limitation of Liability. EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(b) Total Liability. IN NO EVENT WILL ARTLESS’ TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO ARTLESS IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY ARTLESS TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ARTLESS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
13. DISPUTE RESOLUTION FOR INDIVIDUALS.
If Customer is an individual who uses the Get Shouting Platform for itself and not on behalf of an organization or entity, disputes with Artless shall be resolved as set forth in this Section 13.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Get Shouting Platform (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. Customer and Artless agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that Customer and Artless are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 13(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Consumer Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Consumer Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
The arbitration will be conducted using remote conferencing technology (e.g., by videoconference), in person in San Francisco, California, United States or at some other location that we both agree to. Disputes that meet the requirements for desk arbitrations as set forth in the AAA Consumer Rules, may be resolved by the submission of documents only, as set forth in the AAA Consumer Rules, unless the Arbitrator decides that a hearing is necessary. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds Customer’s Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from Customer. If Customer prevails in arbitration Customer will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 13(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that Customer or Artless prevails on a claim and seeks public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. CUSTOMER AND ARTLESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ARTLESS’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with Customer’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 13(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
14. DISPUTE RESOLUTION FOR ENTITIES.
If Customer is accessing and using the Get Shouting Platform on behalf of a company or other legal entity, any Dispute will be resolved exclusively according to the process set forth in Section 13, expressly including the class action waiver, except that, to the extent legally permitted, (a) each party will be responsible for their own filing, administrative, arbitrative and similar fees, (b) the losing party will pay the prevailing party for all costs and attorney’s fees, and (c) the AAA Commercial Arbitration Rules will apply to any arbitration between us.
15. GENERAL.
(a) Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
(b) Assignment. Customer may not assign or transfer this Agreement, by operation of law or otherwise, without Artless’ prior written consent. Artless may freely assign or transfer this Agreement without consent. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(c) Notices. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by United States Postal Service Priority Express Mail, with delivery confirmation, postage prepaid, or sent by email, and if sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
(d) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
(e) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(f) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(g) Export Regulation. Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Get Shouting Platform are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.
(h) Governing Law; Jurisdiction. This Agreement will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Except as otherwise expressly set forth in Section 13 (Dispute Resolution for Individuals) and 14 (Dispute Resolution for Entities), any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Los Angeles, California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
EXHIBIT A
DATA PROCESSING ADDENDUM
This Data Processing Addendum (including its Annexes) (this “DPA”) forms part of and is subject to the terms and conditions of the Get Shouting Terms of Service (the “Agreement”) by and between Customer and Artless. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent any language in this DPA or any of its Annexes conflicts with the Agreement, this DPA shall control.
1. DEFINITIONS.
For the purposes of this DPA, the following terms and those defined within the body of this DPA apply.
(a) “Customer Personal Data” means Customer Materials that are Personal Data Processed by Artless on behalf of Customer under the Agreement.
(b) “Data Protection Laws” means the privacy and data protection laws, rules, and regulations applicable to a party’s Processing of Customer Personal Data under the Agreement. “Data Protection Laws” may include, but are not limited to, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act) (“CCPA”); the EU General Data Protection Regulation 2016/679 (“GDPR”) and its respective national implementing legislations; other comprehensive U.S. state privacy laws; the Swiss Federal Act on Data Protection; the United Kingdom General Data Protection Regulation; and the United Kingdom Data Protection Act 2018 (in each case, as amended, adopted, or superseded from time to time).
(c) “Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable Data Protection Laws.
(d) “Process” or “Processing” means any operation or set of operations that is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection; recording; organization; structuring; storage; adaptation or alteration; retrieval; consultation; use; disclosure by transmission, dissemination, or otherwise making available; alignment or combination; restriction; erasure; or destruction.
(e) “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, or alteration of, or the unauthorized disclosure of or access to, Customer Personal Data attributable to Artless.
(f) “Services” means the services that Artless performs under the Agreement.
(g) “Subprocessor” means a vendor that Artless has engaged to Process Customer Personal Data.
2. PROCESSING TERMS FOR CUSTOMER PERSONAL DATA.
(a) Documented Instructions. Artless shall Process Customer Personal Data to provide the Services in accordance with the Agreement, this DPA, and any instructions agreed upon by the parties. If applicable law requires that Artless Process Customer Personal Data for other purposes, Artless shall inform Customer of that legal requirement before engaging in such Processing, unless that law prohibits such information on important grounds of public interest.
(b) Authorization to Use Subprocessors. Customer authorizes Artless to engage Subprocessors. Customer acknowledges that Subprocessors may further engage vendors.
(c) Artless and Subprocessor Compliance. Artless shall (i) enter into a written agreement with Subprocessors that imposes data protection requirements for Customer Personal Data on such Subprocessors that are consistent with this DPA; and (ii) remain responsible to Customer for the Subprocessors’ failure to perform their obligations with respect to the Processing of Customer Personal Data.
(d) Right to Object to Subprocessors. Customer may subscribe to receive notifications about new Subprocessors by emailing support@getshouting.com. If Customer subscribes to new Subprocessor notifications as described in the preceding sentence, Artless shall notify Customer prior to engaging any new Subprocessor by sending a notification to the email address provided by Customer. If Customer has legitimate objections to the appointment of any new Subprocessor, the parties shall work together in good faith to resolve the grounds for the objection.
(e) Confidentiality. Any person authorized to Process Customer Personal Data shall be subject to a duty of confidentiality, contractually agree to maintain the confidentiality of such information, or be under an appropriate statutory obligation of confidentiality.
(f) Personal Data Inquiries and Requests. Artless shall provide reasonable assistance to Customer as required by applicable Data Protection Laws in response to any requests from individuals exercising their rights in Customer Personal Data granted to them under applicable Data Protection Laws.
(g) Data Protection Assessment, Data Protection Impact Assessment, and Prior Consultation. Artless shall provide reasonable assistance and information to Customer as required by applicable Data Protection Laws where, in Customer’s judgment, the type of Processing performed by Artless requires a data protection assessment, data protection impact assessment, and/or prior consultation with the relevant data protection authorities. Customer shall reimburse Artless for all non-negligible costs Artless incurs in performing its obligations under this Section 2(g).
(h) Demonstrable Compliance. Artless shall provide information reasonably necessary to demonstrate compliance with this DPA as required by applicable Data Protection Laws upon Customer’s reasonable request.
(i) California-Specific Terms. To the extent that Artless’s Processing of Customer Personal Data is subject to the CCPA, this Section 2(i) also applies. Customer discloses or otherwise makes available Customer Personal Data to Artless for the limited and specific purpose of enabling Artless to provide the Services to Customer in accordance with the Agreement and this DPA. Artless shall (i) comply with its applicable obligations under the CCPA; (ii) provide the same level of protection as required under the CCPA; (iii) notify Customer if it can no longer meet its obligations under the CCPA; (iv) not “sell” or “share” (as such terms are defined by the CCPA) Customer Personal Data; (v) not retain, use, or disclose Customer Personal Data for any purpose (including any commercial purpose) other than to provide the Services under the Agreement or as otherwise permitted under the CCPA; (vi) not retain, use, or disclose Customer Personal Data outside of the direct business relationship between Customer and Artless; and (vii) unless otherwise permitted by the CCPA, not combine Customer Personal Data with Personal Data that Artless (a) receives from, or on behalf of, another person, or (b) collects from its own, independent consumer interaction. Artless will permit Customer, upon reasonable request, to take reasonable and appropriate steps to ensure that Artless Processes Customer Personal Data that is subject to this Section 2(i) in a manner consistent with the obligations of a “business” under the CCPA by requesting that Artless attest to its compliance with this Section 2(i). Following any such request, Artless will promptly provide that attestation or an explanation of why it cannot provide it. If Customer reasonably believes that Artless is engaged in unauthorized Processing of Customer Personal Data that is subject to this Section 2(i), Customer will notify Artless of such belief, and the parties will work together in good faith to remediate the allegedly violative Processing activities, if necessary.
3. INFORMATION SECURITY PROGRAM.
Artless shall implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data.
4. SECURITY INCIDENTS.
Upon becoming aware of a Security Incident, Artless shall provide written notice without undue delay and within the time frame required under applicable Data Protection Laws to Artless’s primary contact at Customer’s organization, or the email address that is listed as Customer’s account owner or administrator. Where possible, such notice will include all available details required under applicable Data Protection Laws for Customer to comply with its own notification obligations to government authorities and/or individuals affected by the Security Incident.
5. CROSS-BORDER TRANSFERS OF CUSTOMER PERSONAL DATA.
(a) Cross-Border Transfers of Customer Personal Data. Customer authorizes Artless and its Subprocessors to transfer Customer Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
(b) EEA, Swiss, and UK Standard Contractual Clauses. If Customer Personal Data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Customer to Artless in a country that has not been found to provide an adequate level of protection under applicable Data Protection Laws, the parties agree that the transfer shall be governed by Module Two’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“Standard Contractual Clauses”) as supplemented by Annex 1 attached hereto, the terms of which are incorporated herein by reference. Each party’s execution of the Agreement shall be considered a signature to the Standard Contractual Clauses to the extent that the Standard Contractual Clauses apply hereunder.
6. AUDITS AND ASSESSMENTS.
Where Data Protection Laws afford Customer an audit or assessment right, Customer (or its appointed representative) may carry out an audit or assessment of Artless’s policies, procedures, and records relevant to the Processing of Customer Personal Data. Any audit or assessment must be (i) conducted during Artless’s regular business hours; (ii) done with reasonable advance notice to Artless; (iii) carried out in a manner that prevents unnecessary disruption to Artless’s operations; and (iv) subject to reasonable confidentiality procedures. In addition, any audit or assessment shall be limited to once per year, unless an audit or assessment is carried out at the direction of a government authority with jurisdiction over the Processing of Customer Personal Data.
7. CUSTOMER PERSONAL DATA DELETION.
At the expiry or termination of the Agreement, Artless shall delete all Customer Personal Data (excluding any backup or archival copies, which shall be deleted in accordance with Artless’s data retention schedule), except where Artless is required to retain copies under applicable laws, in which case Artless will isolate that Customer Personal Data and restrict any further Processing of it except to the extent required by applicable laws.
Annex I TO THE DATA PROCESSING ADDENDUM
This Annex I forms part of the DPA and supplements the Standard Contractual Clauses. Capitalized terms not defined in this Annex I have the meaning set forth in the DPA.
The parties agree that the following terms shall supplement the Standard Contractual Clauses:
1. SUPPLEMENTAL TERMS.
The parties agree that (i) a new Clause 1(e) is added to the Standard Contractual Clauses, which shall read as follows: “To the extent applicable hereunder, these Clauses also apply mutatis mutandis to the Parties’ processing of personal data that is subject to the Swiss Federal Act on Data Protection. Where applicable, references to EU Member State law or EU supervisory authorities shall be modified to include the appropriate reference under Swiss law as it relates to transfers of personal data that are subject to the Swiss Federal Act on Data Protection.”; (ii) a new Clause 1(f) is added to the Standard Contractual Clauses, which shall read as follows: “To the extent applicable hereunder, these Clauses, as supplemented by Annex III, also apply mutatis mutandis to the Parties’ processing of personal data that is subject to UK Data Protection Laws (as defined in Annex III).”; (iii) the optional text in Clause 7 is deleted; (iv) Option 1 in Clause 9 is struck and Option 2 is kept, and data importer may engage new subprocessors in accordance with Section 2(d) of the DPA; (v) the optional text in Clause 11 is deleted; and (vi) in Clauses 17 and 18, the governing law and the competent courts are those of Ireland (for EEA transfers), Switzerland (for Swiss transfers), or England and Wales (for UK transfers).
2. ANNEX I.
Annex I to the Standard Contractual Clauses shall read as follows:
List of Parties:
Data exporter: Customer.
Address: The address associated with the Customer’s account, or as otherwise specified.
Contact person’s name, position, and contact details: The contact details associated with the Customer’s account, or as otherwise specified.
Activities relevant to the data transferred under these Clauses: The Services.
Role: Controller.
Data importer: Artless.
Address: As set forth in the Notices section of the Agreement.
Contact person’s name, position, and contact details: As set forth in the Notices section of the Agreement.
Activities relevant to the data transferred under these Clauses: The Services.
Role: Processor.
Description of the Transfer:
Categories of data subjects whose personal data is transferred: The categories of data subjects whose personal data is transferred under the Clauses.
Categories of personal data transferred: The categories of personal data transferred under the Clauses.
Sensitive data transferred (if applicable) and applied restrictions or safeguards: To the parties’ knowledge, no sensitive data is transferred.
The frequency of the transfer: Personal data is transferred in accordance with the standard functionality of the Services, or as otherwise agreed upon by the parties.
Nature of the processing: The Services.
Purpose(s) of the data transfer and further processing: The Services.
The period for which the personal data will be retained: Data importer will retain personal data in accordance with the DPA.
For transfers to (sub-) processors, also specify subject matter, nature, and duration of the processing: The subject matter, nature, and duration are identified above.
Competent Supervisory Authority: The supervisory authority mandated by Clause 13. If no supervisory authority is mandated by Clause 13, then the supervisory authority is the Irish Data Protection Commission, and if this is not possible, then the supervisory authority is as otherwise agreed by the parties consistent with the conditions set forth in Clause 13.
Clarifying Terms: The parties agree that (i) the certification of deletion required by Clause 8.5 and Clause 16(d) of the Clauses will be provided upon data exporter’s written request; (ii) the measures data importer is required to take under Clause 8.6(c) of the Clauses will only cover data importer’s impacted systems; (iii) the audit described in Clause 8.9 of the Clauses shall be carried out in accordance with Section 6 of the DPA; (iv) the termination right contemplated by Clause 14(f) and Clause 16(c) of the Clauses will be limited to the termination of the Clauses; (v) unless otherwise stated by data importer, data exporter will be responsible for communicating with data subjects pursuant to Clause 15.1(a) of the Clauses; and (vi) the information required under Clause 15.1(c) of the Clauses will be provided upon data exporter’s written request.
3. ANNEX II.
Annex II of the Standard Contractual Clauses shall read as follows:
Data importer shall implement and maintain technical and organisational measures designed to protect personal data in accordance with the DPA. Such measures shall include:
Pursuant to Clause 10(b), data importer will provide data exporter assistance with data subject requests in accordance with the DPA.
4. ANNEX III.
A new Annex III shall be added to the Standard Contractual Clauses and shall read as follows:
The UK Information Commissioner’s Office International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (“UK Addendum”) is incorporated herein by reference.
Table 1: The start date in Table 1 is the effective date of the DPA. All other information required by Table 1 is set forth in Annex I, Section A of the Clauses.
Table 2: The UK Addendum forms part of the version of the Approved EU SCCs which this UK Addendum is appended to, including the Appendix Information, effective as of the effective date of the DPA.
Table 3: The information required by Table 3 is set forth in Annex I and II to the Clauses.
Table 4: The parties agree that Importer may end the UK Addendum as set out in Section 19.
March 18, 2026