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User Terms of Use

Last Updated: May 2nd, 2020

PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY.  IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE CLOUT EFFECTS SERVICE (DEFINED BELOW).  WHERE PERMITTED BY APPLICABLE LAW, THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN IN A CLASS ACTION FORMAT.

Introduction

This User Terms of Use (the “Terms”) is a legal agreement between you (“you” and “your”) and CLOUT EFFECTS (referred to herein as “CLOUT EFFECTS”, but at times using “we”, “us” or “our”), that governs your limited, non-exclusive, terminable right to receive and send communications, namely text messages through the CLOUT EFFECTS messaging platform, including, without limitation, your use of our website, applications and related services (collectively, the “Service”).  By using the Service, you agree to be bound by the terms and conditions set forth in these Terms.  Therefore, do not use the Service if you do not agree.  By using the Service, you acknowledge and accept the Service’s Privacy Policy and consent to the collection and use of your data in accordance with our Privacy Policy.

The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.

You must be at least thirteen (13) years of age or older to access and use the Service.  If you are under the age of majority in your state or jurisdiction of residence, you may use the Service only with involvement of a parent or guardian who agrees to these Terms, both on their and your behalf, and agrees to be responsible for your use.  In addition to being the minimum age to use our Services, if you are not old enough to have authority to agree to these Terms in your state or country, your parent or other legal guardian must agree to these Terms on your behalf.

Services Offered by CLOUT EFFECTS

The Service provides you with the ability to send and receive messages from our customers that you sign up to communicate with (these include musicians, athletes, celebrities, influencers, actors, their agents, and others) (collectively our “Customers”).  Our Customers use a phone number provided by CLOUT EFFECTS (the “CLOUT EFFECTS Phone Number”) to facilitate your communications with Customers.  Messages sent by Customers may include personal messages, personal photos or videos, offers, advertisements, contests, sweepstakes and promotions, images, videos, files, links and other content sent by our Customers.  The messages you receive are not controlled by CLOUT EFFECTS but are sent directly by our Customers.  

CLOUT EFFECTS encourages the individual with whom you have signed up to receive messages from directly communicating with you when they use the Service.  However, from time to time a Customer may allow a representative to send you messages on their behalf.  For instance, an agent (or friend) of a Customer may send a message through the Customer’s account.  You acknowledge that a message sent by a Customer may actually be sent on his/her behalf by a public relations or other social media representative.  You understand and acknowledge that conversations you engage in when using the Service are not private conversations but are stored and available to be viewed by others.  Additionally messages sent by Customers may oftentimes be promotional and advertising communications and sent by Customer on behalf of their sponsors and advertisers.  If you don’t like the messages you receive from a Customer, you always have the right to opt-out from receiving further messages from that Customer as explained in more detail below.

You agree that CLOUT EFFECTS has no responsibility or liability for the messages, voicemails, content, conversations, interactions and content exchanged through the Service by our Customers.  CLOUT EFFECTS and mobile carriers are not liable for delayed or undelivered messages.  We and our Customers reserve the right to suspend, block or terminate your ability to access the Service (including messages to and from a particular Customer), at any time, at our sole discretion, and without prior warning if your activity is believed to violate any term in these Terms or applicable law. Violation of applicable anti-spam laws, rules and regulations may also result in third-party legal actions against you.  CLOUT EFFECTS also reserves the right to terminate your access to the Service at any time and immediately if we believe that your conduct is harmful to the interests of CLOUT EFFECTS or any Customer or if we decide to terminate the Service.

To use the Service, you must have cellular phone service and the ability to receive SMS and MMS text messages from your Device (defined below).  You further consent to receive telephone calls, voicemails and emails from Customers via the Service from time to time.  You also agree to receive emails and/or messages from CLOUT EFFECTS regarding changes to our Terms and Privacy Policy, Service outages, special news and new features.

The Service may rely on your third-party cellular service, any limitations in that service will also limit the manner in which you can use the Service, including, but not limited to, receiving photos, videos, and other data.

You consent to receive messages twenty-four (24) hours a day, three hundred sixty-five (365) days of the year, including on weekends and holidays.  If you are under the applicable age of majority in your state/jurisdiction of residence, you acknowledge that your parents/guardians have consented to you receiving messages, and you agree that your use of the Service is at their discretion.  Until you are the legal age of majority in your state/jurisdiction of residence, your parents/guardians may ask us to modify, deny access to, or terminate your access to the Service and we may do so at their request at any time, for any reason, without notice or liability.

In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

Table of Contents
Full Details of the Terms of Use
1.   Spam Policy

CLOUT EFFECTS maintains a zero tolerance policy regarding the delivery of Spam or unwanted commercial messages using the Service.  Notwithstanding anything else in these Terms, neither you nor our Customers will be permitted to send, cause to be sent, or facilitate the sending of Spam using the Service.  If you send Spam or that we believe that you are facilitating the sending of Spam, your account may be suspended and terminated, and CLOUT EFFECTS may participate in your prosecution.  “Spam” is defined as any message the purpose of which is to promote the sale of goods or services or participation in commercial activity without the prior consent of the recipient, as required under the applicable laws. This includes content which violates the terms and conditions of these Terms, including, without limitation, Section 5 below.

2.   Communications, Text Messages and Agreement to be Contacted

A.  Call Recording and Monitoring.  You acknowledge that telephone calls, voicemails, messages and texts to, from or through the Service, together with its agents, independent contractors (including you and other users), and affiliates, may be monitored and recorded and you consent to such monitoring and recording.

B.  Your Provision of Telephone Numbers and Other Contact Information.  You verify that any contact information provided to CLOUT EFFECTS, Customers, our respective agents and affiliates, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate.  You verify that you are the current subscriber or owner of any telephone number that you provide.  You are strictly prohibited from providing a phone number that is not your own.  If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or terminate your account access at any time.  Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by email at support@clouteffects.com.  In the event that you get a new telephone number, you will need to re-register and opt in to receive messages.  Do this by simply texting the Customer you’d like to receive messages from, and we will send a link for you to re-register.

C.  Your Consent to Receive Automated Texts.  You acknowledge that by voluntarily providing your telephone number(s) to CLOUT EFFECTS, Customers, our respective agents and affiliates, you expressly agree to receive automated text messages from us, our agents, independent contractors, Customers, and affiliates related to promotions, your account, registration, orientation, product alterations, changes and updates, service outages, any transaction with CLOUT EFFECTS, and/or your relationship with us.  You acknowledge and expressly agree to receive telephone calls and voice messages from Customers.  You acknowledge that automated text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list.  You understand that you may receive automated text messages to any telephone number you provide at any time.  You also agree that CLOUT EFFECTS may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means.  You agree to receive automated text messages from us, our agents, independent contractors, Customers, and affiliates even if you terminate your relationship with us, except if you opt-out (see below).  You understand that you do not have to agree to receive automated promotional texts as a condition of purchasing any goods or services.  To opt-out, please see the Opt-Out Instructions below.

D.  Opt-Out Instructions for Automated Texts. Your consent to receive automated texts is completely voluntary.  You may opt-out at any time.  You may opt-out from receiving messages from a CLOUT EFFECTS Customer at any time by texting “STOP” to an individual Customer’s unique ten (10) digit number.  To opt-out from the Service entirely and all Customers which you receive text messages, please send an email to support@clouteffects.com and specify that you want to opt out from receiving text messages. You acknowledge and agree to accept a final text message confirming your opt-out.  It is your sole responsibility to notify us if you no longer want to receive automated text messages. You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions.  Please allow up to thirty (30) days (or ten (10) business days where required by law) to process any opt-out request.  Please note that if you opt out of automated text messages, we reserve the right to send you confirmation text messages or make non-automated calls to you.  You may also request assistance at any time by texting “HELP” or emailing us at support@clouteffects.com.

E.  Fees and Charges. There is no fee to receive automated text messages from CLOUT EFFECTS, Customers, our agents, affiliates, and independent contractors. However, you may incur a charge for these text messages from your telephone carrier, which is your sole responsibility. Messaging and Data rates may be applicable and you may be responsible for fees or charges from your carrier. You may incur other charges if you leave the Service through links. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that CLOUT EFFECTS, Customers, our agents, affiliates, and independent contractors are not responsible for such charges. Your obligations under this Section 2 will survive expiration or termination of these Terms.

3.   Content, Ownership, Limited License and Rights of Others

A.  Content.  When you use the Service, you will encounter a variety of: (i) communications from Customers and other third parties, which include content and materials, such as emojis, photographs, videos, pictures, advertisements, links and articles, etc. (collectively, “Customer Content”); (ii) content, materials and other items provided by CLOUT EFFECTS, including, without limitation, the CLOUT EFFECTS Phone Number (collectively, “CLOUT EFFECTS Content”); and (iii) trademarks, copyrights, patents, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of CLOUT EFFECTS (collectively, “Intellectual Property”) (the Customer Content, the CLOUT EFFECTS Content and the Intellectual Property are collectively referred to herein as “Content”).

B.  Ownership. The Service and the Content are owned or controlled by CLOUT EFFECTS, our Customers, licensors or other third parties.  All right, title, and interest in and to the Content available via the Service is the property of CLOUT EFFECTS, our Customers, our licensors or other third parties, and is protected by U.S., Canadian, European and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.

C.  Limited License.  Subject to your strict compliance with these Terms and any Additional Terms, CLOUT EFFECTS grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one (1) copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only.  The foregoing limited license to the Content: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in CLOUT EFFECTS’ sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.  At any time and from time to time, and without your consent, CLOUT EFFECTS may, in CLOUT EFFECTS sole discretion, unilaterally terminate your right to use the Service with or without cause at any time and without notice or cause. Upon suspension or termination of your access to the Service, or upon notice from us, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.

D.  Rights of Others. When using the Service, you must respect the intellectual property and other rights of CLOUT EFFECTS and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 5 below.

4.   Service and Content Use Restrictions

A.  Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to CLOUT EFFECTS; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with another user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, CLOUT EFFECTS, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.

B.  Content Use Restrictions.  You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of CLOUT EFFECTS or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

C.  Availability of Service and Content.  CLOUT EFFECTS may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in CLOUT EFFECTS’ sole discretion, and without advance notice or liability.

D.  Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by CLOUT EFFECTS and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.

5.   Content You Submit and Clout Effects Usage Rules

A.  User-Generated Content.

A.  User Content.

(i)  General.  CLOUT EFFECTS may now or in the future offer users of the Service the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit messages, avatars, text, illustrations, emojis, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User Content”).  CLOUT EFFECTS may allow you to do this through text or forums, blogs, message boards, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User Content and you remain ultimately responsible for it.

(ii)  Non-Confidentiality of Your User Content.  Except as otherwise described in the Service’s posted Privacy Policy or any Additional Terms, you agree that: (a) your User Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like; and (b) CLOUT EFFECTS does not assume any obligation of any kind to you or any third party with respect to your User Content. Upon CLOUT EFFECTS’ request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk.  In your communications with CLOUT EFFECTS or Customers, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User Content and licensed to us as set forth below. In addition, CLOUT EFFECTS retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  CLOUT EFFECTS’ receipt of your Unsolicited Ideas and Materials is not an admission by CLOUT EFFECTS of their novelty, priority, or originality, and it does not impair CLOUT EFFECTS’ right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

(iii)  License to CLOUT EFFECTS to Your User Content.  Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User Content, you grant to CLOUT EFFECTS and Customers the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, translate, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to CLOUT EFFECTS and Customers to your User Content, you also grant to CLOUT EFFECTS and Customers, to the extent permitted by applicable law, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5(A)(iii).  In the event CLOUT EFFECTS shares your User Content, we may take steps as we feel appropriate to limit revealing sensitive or personal exchanges with Customers.  CLOUT EFFECTS is sensitive to protecting private and intimate User Content shared on the Service.

(iv)  Exclusive Right to Manage Our Service.  CLOUT EFFECTS may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User Content, and CLOUT EFFECTS may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User Content without notice or any liability to you or any third party in connection with our operation of User Content venues in an appropriate manner.  Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules (defined in Section 5(B).  Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere.

(v)  Representations and Warranties Related to Your User Content. Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, as to that User Content: (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant CLOUT EFFECTS the rights to it that you are granting by these Terms and any Additional Terms, all without any CLOUT EFFECTS obligation to obtain consent of any third party and without creating any obligation or liability of CLOUT EFFECTS ; (b) the User Content is accurate; (c) the User Content does not and, as to CLOUT EFFECTS’ permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.

(vi)  Enforcement.  CLOUT EFFECTS has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at CLOUT EFFECTS’ cost and expense, to which you hereby consent and irrevocably appoint CLOUT EFFECTS as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

B.  Usage Rules.  These Usage Rules (the “Rules”) are here to help you understand the conduct that is expected when sending messages or otherwise using the Service.

(i)  Nature of Rules. Your participation on the Service is subject to all of the Terms, including these Rules:

If you violate these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion.  However, we are not obligated to take any action not required by law.  We may require, at any time, proof of the permissions referred to above in a form acceptable to us.  Failure to provide such proof may lead to, among other things, the User Content in question being removed from the Service.

(ii)  Your Interactions With Other Users; Disputes.  You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user.  We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users or Customers.  Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other activities related to the Service.

C.  Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to support@clouteffects.com. For alleged infringements of intellectual property rights, see Sections 6 and 7 below.

6.   Procedure For Alleging Copyright Infringement

A.  DMCA Notice. CLOUT EFFECTS will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), these Terms, and other applicable law, as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

(i)   a legend or subject line that says: “DMCA Copyright Infringement Notice”;

(ii)  a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii)  a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);

(iv)   your full name, address, telephone number and email address;

(v)   a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi)   a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii)   your electronic or physical signature.

CLOUT EFFECTS will only respond to DMCA Notices that it receives by email at the address below:

  By email: support@clouteffects.com

It is often difficult to determine if your copyright has been infringed. CLOUT EFFECTS may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and CLOUT EFFECTS may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.

Without limiting CLOUT EFFECTS’ other rights, CLOUT EFFECTS may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by CLOUT EFFECTS.

B.  Counter-Notification.  If access on the Service to a work that you submitted to CLOUT EFFECTS is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

(i)   a legend or subject line that says: “DMCA Counter-Notification”;

(ii)  a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);

(iii)  a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

(iv)   your full name, address, telephone number, e-mail address, and the username of your account;

(v)   a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California, and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

(vi)   your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

7.   Procedure For Alleging Infringement of Other Intellectual Property

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:

(a)   a legend or subject line that says: “Intellectual Property Infringement Notice”;

(b)   a description of the intellectual property that you claim has been infringed;

(c)   a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);

(d)   your full name, address, telephone number and email address;

(e)   a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

(f)   a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and

(g)   your electronic or physical signature.

We will act on such notices at our sole discretion. Any user of the Service that fails to respond satisfactorily to CLOUT EFFECTS with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

8.   Assumption of Risk

You use the Services solely at your own risk and subject to all applicable local, state, provincial/territorial, national, and international laws and regulations.  While CLOUT EFFECTS has endeavored to create a secure and reliable Service, please be advised that the confidentiality of any communication or material transmitted to/from a Service over the internet cannot be guaranteed. Accordingly, CLOUT EFFECTS is not responsible for the security of any information transmitted via the Service, the accuracy of the information contained on the Service, or for the consequences of any reliance on such information.  CLOUT EFFECTS shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Service.

Any Content downloaded or otherwise obtained through the use of the Service is done at your own discretion and risk. You will be solely responsible for any damage to your Device, or loss of data or virus that results from the download of any such material.

9.   Links

A.  Linked Services; Advertisements.  The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, sellers of alcohol and alcohol related products and certain other third parties who may have business relationships with CLOUT EFFECTS or Customers.  CLOUT EFFECTS may have no control over the content, operations, policies, terms, or other elements of Linked Services, and CLOUT EFFECTS does not assume any obligation to review any Linked Services. CLOUT EFFECTS does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, CLOUT EFFECTS is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services.  Finally, CLOUT EFFECTS will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services.  CLOUT EFFECTS disclaims all liability in connection therewith.

B.  Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). CLOUT EFFECTS disclaims all liability in connection therewith.

10.   Dispute Resolution

If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 10 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and CLOUT EFFECTS agree that we intend that this Section 10 satisfies the “writing” requirement of the Federal Arbitration Act.  If you are a resident of Canada, and are not an individual resident in Quebec (where this Section does not apply in a manner prohibited by the Quebec Consumer Protection Act), this Section 10 applies to the maximum extent permitted by the applicable law.   PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

A.  First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of CLOUT EFFECTS’ actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 10(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent via email to: support@clouteffects.com.  For a period of sixty (60) days from the date of receipt of notice from the other party, CLOUT EFFECTS and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or CLOUT EFFECTS to resolve the Dispute or Excluded Dispute on terms with respect to which you and CLOUT EFFECTS, in each of our sole discretion, are not comfortable.

B.  Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND CLOUT EFFECTS (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the Federal Arbitration Act, not state law, shall govern the arbitrability of all disputes between CLOUT EFFECTS and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  CLOUT EFFECTS and you agree, however, that the applicable state, local, or federal law, as contemplated in Section 10(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and CLOUT EFFECTS regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.

Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of CLOUT EFFECTS consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Los Angeles County, California. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require CLOUT EFFECTS to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then CLOUT EFFECTS will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

C.  Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 10(A); (b) filing for arbitration as set forth in Section 10(B); or (c) filing an action in state, Federal or provincial court.

D.  Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by CLOUT EFFECTS to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User Content and/or CLOUT EFFECTS’ intellectual property rights (including such CLOUT EFFECTS may claim that may be in dispute), CLOUT EFFECTS’ operations, and/or CLOUT EFFECTS’ products or services.

E.  No Class Action Matters. YOU AND CLOUT EFFECTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.

F.  Jurisdictional Issues. Except where arbitration is required above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Los Angeles County, California.  Accordingly, you and CLOUT EFFECTS consent to the exclusive personal jurisdiction and venue of such courts for such matters.

G.  Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.

H.  Governing Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with the laws of the State of California, without regard to its conflicts of law provisions.

11.  Disclaimer of Representations and Warranties

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, CLOUT EFFECTS, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “CLOUT EFFECTS Parties”), hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

(a)  the Service (including the Content, the messages sent/received through the Service and the User Content);

(b)  the functions, features, or any other elements on, or made accessible through, the Service;

(c)  any products, services, locations, or instructions offered or referenced at or linked through the Service;

(d)  security associated with the transmission of your User Content transmitted to CLOUT EFFECTS via the Service;

(e)  whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f)  whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;

(g)  whether any defects to, or errors on, the Service will be repaired or corrected;

(h)  whether your access to the Service will be uninterrupted;

(i)  whether the Service will be available at any particular time or location;

(j)  whether the Service, or your use thereof, constitutes an automatic telephone dialing system (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used in the TCPA or by other applicable related regulations or law;

(k) whether any text/SMS/MMS messages sent using the Service will be actually delivered to and received by the intended recipients on their mobile devices; and

(l)  whether your use of the Service is lawful in any particular jurisdiction.

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A CLOUT EFFECTS PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CLOUT EFFECTS PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

12.   Limitations of Our Liability

TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY CLOUT EFFECTS PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

(a)  the Service (including the Content and the User Content and any messages you receive on or through the Service), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;

(b)  your use of or inability to use the Service, or the performance of the Service;

(c)  any action taken in connection with an investigation by CLOUT EFFECTS Parties or law enforcement authorities regarding your access to or use of the Service;

(d)  any action taken in connection with copyright or other intellectual property owners or other rights owners;

(e)  any errors or omissions in the Service’s technical operation, including delivery of messages;

(f) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Service; or

(g)  any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if CLOUT EFFECTS Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CLOUT EFFECTS PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID CLOUT EFFECTS TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.

13.   Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED EITHER IN WHOLE OR IN PART AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.

Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.

14.   Enforcing Security

Actual or attempted unauthorized use of any of the Service may result in criminal and/or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Service without notice or further permission from you, to the fullest extent permitted by applicable law, and in our sole discretion, provide your data and activity to law enforcement. This right extends to our review of message content and details pertaining to claimed violations of our Spam Policy. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Services.

15.   Compliance with Laws

You will use the Service in full compliance with all applicable laws and regulations with regard to your use of the Service, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, the Canadian Anti-Spam Legislation, the Unsolicited Telecommunications Rules, individual state/provincial/territorial laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications such as SMS and MMS messages.  You will not use the Service in violation of any service agreement that you have with a third-party telecommunications provider.

16.   Indemnity

You agree to, and you hereby, defend, indemnify, and hold the CLOUT EFFECTS Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any CLOUT EFFECTS Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriate any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) CLOUT EFFECTS Parties’ use of the information that you submit to us (including your User Content) and (viii) for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify CLOUT EFFECTS of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold us harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by CLOUT EFFECTS Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, CLOUT EFFECTS Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. CLOUT EFFECTS Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a CLOUT EFFECTS Party.

17.   General Provisions

A. CLOUT EFFECTS’ Consent or Approval. As to any provision in these Terms or any Additional Terms that grant CLOUT EFFECTS a right of consent or approval, or permits CLOUT EFFECTS to exercise a right in its “sole discretion,” CLOUT EFFECTS may exercise that right in its sole and absolute discretion. No CLOUT EFFECTS consent or approval may be deemed to have been granted by CLOUT EFFECTS without being in writing and signed by an officer of CLOUT EFFECTS.

B.  Operation of Service; Availability of Products and Services; International Issues. The Service is operated in the United States, and is primarily intended for users located in the U.S. or Canada. CLOUT EFFECTS makes no representation that the Service is appropriate or available for use beyond the U.S. or Canada. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your conduct and acceptable content, if and to the extent local laws apply.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.  Delivery and delivery rates of text/SMS/MMS messages are the responsibility of third mobile carriers to whom such messages are delivered and may vary.

C.  Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

D.  Communications.  As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

E.  Investigations; Cooperation with Law Enforcement; Termination; Survival. CLOUT EFFECTS reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by CLOUT EFFECTS in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to CLOUT EFFECTS under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from CLOUT EFFECTS, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to CLOUT EFFECTS in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

F.  Assignment. CLOUT EFFECTS may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of CLOUT EFFECTS.

G.  No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or CLOUT EFFECTS in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict CLOUT EFFECTS’ right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.

H.  Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service providers, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.