Last Updated: August 9, 2020
This Talent Terms of Service Agreement (“Terms”) governs your use as a talent user of the Shawtout.com marketplace platform offered by Shawtout.com Inc., doing business as Shawtout.com (“we”, “us”, or “Shawtout.com”), including our website (Shawtout.com.com), and services we provide (collectively, the website, App, and services referred to as our “Site”). “You” and “Talent User” refer to you as a talent user of the Site.
These Terms apply solely to Talent Users of our Site. Use of our Site is also subject to our current Acceptable Use Policy. Any use by you of our Site other than as a Talent User is governed by the Site Terms of Service. (“Site Terms”).
PLEASE READ THESE TERMS CAREFULLY. By using our Site as a Talent User or otherwise indicating your acceptance (for example, by agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understood, and agreed to be bound by these Terms. If you do not agree, you shall not be permitted to access or use our Site as a Talent User.
ARBITRATION NOTICE: Section 19 of these Terms contains provisions governing how claims that you and Shawtout.com may have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and Shawtout.com to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement, as described in Section 19: (1) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law.
1. Participation in the Shawtout.com Marketplace
a. Registration: In order to participate on our Site, you must register. By registering, you agree to provide true, accurate, current, and complete information about yourself as prompted by our registration form, as well as any other information reasonably requested by us (collectively, “Registration Data”), and maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you do not do so or we reasonably believe that you have not done so, we have the right to suspend or terminate your Site account and your use of our Site. You agree not to create a Site account using a false identity or providing false information, on behalf of another person (except as outlined below for a parent or legal guardian and Organizations), or if you (and your parent or legal guardian, or an Organization, if applicable) have previously been removed or banned from our Site. You are responsible for maintaining the confidentiality of your Site account information, including your username and password. You are responsible for all activities that occur on or in connection with your Site account and you agree to notify us immediately of any unauthorized access or use of your Site account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Site account.
- Talent User age 18 or older: Talent Users who are at least 18 years old may register directly. By registering, you represent and warrant that: (A) you are at least 18 years old (and if below 18 years old, are registering with the supervision and with the consent of your parent or legal guardian, who also agrees to these Terms); (B) you are of legal age to form a binding contract; (C) you are (and if below 18 years old, your parent or legal guardian is) not barred from using our Site under the laws of the Philippines, your place of residence (and if below 18 years old, the place of residence of your parent or legal guardian), or any other applicable jurisdiction; and (D) you are (and if below 18 years old, your parent or legal guardian is) responsible for complying with all applicable laws and regulations relating to Talent User’s participation on our Site and will fully indemnify the Shawtout.com Parties (defined below) for any failure to do so.
- Parent or Legal Guardian of Talent User, under age 18: Talent Users who are under 18 years old, may register only through a parent or legal guardian who, by registering, represents and warrants that: (A) he or she is the parent or legal guardian of the Talent User and agrees to these Terms; (B) neither the parent or legal guardian nor the Talent User is barred from using our Site under the laws of the Philippines, the place of residence of the parent, legal guardian, or Talent User, or any other applicable jurisdiction; and (C) he or she is responsible for complying with all applicable laws and regulations relating to Talent User’s participation on our Site and will fully indemnify the Shawtout.com Parties for any failure to do so.
- Organizations: A management company, manager, agency, agent, publicist, or other individual or organization (each, an “Organization”) may register a Talent User (“Affiliated Talent”). By registering, the Organization represents and warrants for itself and each Affiliated Talent that: (A) Organization is the authorized representative of the Affiliated Talent (and, if the Affiliated Talent is below the age of 18, is registering with the consent required of the Affiliated Talent’s parent or legal guardian, as set forth in Sections 1.a(i) and 1.a(ii)) and agrees to these Terms; (B) neither the Organization nor the Affiliated Talent is barred from using our Site under the laws of the Philippines, the place of residence of the Organization or any Affiliated Talent, or any other applicable jurisdiction; and (C) Organization is responsible for complying with all applicable laws and regulations relating to Affiliated Talent’s participation on our Site under these Terms and will fully indemnify the Shawtout.com Parties for any failure to do so. To register Affiliated Talent as an Organization, please contact [email protected]
b. Promotional Materials: At no cost to Shawtout.com, you will provide to us the following promotional materials (“Promotional Materials”) within seventy-two (72) hours of beginning the talent on-boarding process on our Site: (i) if you would like us to promote your participation on our Site, three (3) high resolution images of yourself; (ii) your Site profile bio; and (iii) a promotional video of minimum fifteen seconds (00:15) in length to let your fans know that they can book you on our Site. Please note that you will not be able to receive requests from Users until we receive your promotional video. From time to time, we may request additional Promotional Materials from you for Shawtout.com’s use to promote you on or in connection with our Site or on any social media platform or third party website. Any other materials or photos of or concerning you that you approve for Shawtout.com’s use will also be Promotional Materials under these Terms.
2. Shawtout.com Videos
a. From time to time, a user of our Site (“User”) may request one (1) or more video recordings (each, a “Shawtout.com Video”) from you through our Site. While we hope you will fulfill a request within forty-eight (48) hours from receiving such request, you may have up to seven (7) days (at Shawtout.com’s sole discretion) to complete and upload the Shawtout.com Video. If you do not either: (i) accept the request and upload the Shawtout.com Video; or (ii) decline the request, the request will expire and can no longer be fulfilled (except that you may still fulfill the expired request at no cost to the User and with no payment due from us). You may decline a request or otherwise refuse, in your discretion, to create or upload a Shawtout.com Video only if a User’s request is objectionable or otherwise offensive to you. If you accept a request, you agree to record and upload to our Site one Shawtout.com Video.
b, Shawtout.com retains the right, in its sole discretion, to cancel any request from a User. No payment will be made to you for any declined, cancelled, or unfulfilled Shawtout.com Video request.
c. Each Shawtout.com Video will be minimum thirty seconds (00:30) in duration and will follow the general directions and requests of the User (for example, birthday message, congratulatory message, or “Good luck!” message). You will have sole discretion over the script and content of any Shawtout.com Video, except that you agree: (i) you will use your name (please introduce yourself), the User’s name, and the name of any third party that the User identifies as a recipient (“Recipient”) in each Shawtout.com Video, unless otherwise requested by the User; and (ii) you will not state in the Shawtout.com Video that the Shawtout.com Video is incomplete or cannot be completed. Your response to the User’s request is your responsibility and at your discretion, subject to these Terms; however, Users are usually happiest when at least the majority of their request is followed by a Talent User. If you complete a Shawtout.com Video but do not follow the general directions and requests of the User, we will discuss with you an appropriate adjustment of the payment made to you.
3. Promo Shawtout.com Videos
Subject to the relevant laws of your nationality and/ or residence, you may choose to offer Shawtout.com Videos for promotion of a Philippines commercial entity, brand, or business ("Business") through our Site (each, a "Promo Shawtout.com Video"). Except as noted, each Promo Shawtout.com Video is a Shawtout.com Video under these Terms.
4. Fees and Payment
a. Booking Fee: You set your own price for each Shawtout.com Video and any other offering you choose to make available through the Shawtout.com marketplace platform (e.g., Promo Shawtout.com Videos) (each, a “Booking Fee”).
b. Fees: Other than with respect to an expired request that you choose to fulfill (as set forth in Section 2(a)) and subject to these Terms, we will pay you seventy-five percent (75%) of the Booking Fee actually received by Shawtout.com for each Shawtout.com Video or other Shawtout.com product offering that you created and delivered to fulfill a User’s request that you accepted through our Site, except that in the case of a Booking Fee paid through a third party payment gateway, we will pay you seventy-five percent (75%) of the amount actually received by Shawtout.com after subtracting any payment to or deduction by the application platform (e.g., Paypal deducts a 3.4% commission from the Booking Fee) from the Booking Fee (“Net App Booking Fee”). In addition, if the offering permits a User to designate an additional amount as a “tip”, we will pay you seventy-five percent (75%) (unless a different percentage is agreed in writing by Shawtout.com) of any amount designated by a User via our Site as a “tip”. Fees shall only be payable to you upon completion or proper fulfillment of the requested Shawtout.com Video.
c. Fees and Payment Representations and Warranties: You represent and warrant that: (i) Shawtout.com Videos are not, and are not intended to be, covered by any guild, union, collective bargaining, or similar agreement and there will be no residual or any other type of payment due from Shawtout.com to you, to any third party, guild, or union, or pursuant to any collective bargaining agreement, in connection with any Shawtout.com Video, payment from us to you, or our Site; (ii) Shawtout.com is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with our Site; and (iii) Shawtout.com is not responsible for any contributions, payments, taxes, or deductions for Social Security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labor union, or any withholding or income taxes.
d. Payment: You agree to register with the third-party payment provider selected by Shawtout.com, which Shawtout.com may change in its sole discretion. You may not use a payment provider other than the one selected by Shawtout.com. You will provide the payment provider any information required in order to receive payments via the payment provider. Any payments due to you from Shawtout.com will be made via the payment provider. If you do not provide the payment provider with all required information, you may not be able to receive the payments due to you. Shawtout.com will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide such information. Subject to the payment provider’s terms, payment will be made within approximately two (2) weeks from receipt by Shawtout.com of the Booking Fee or Net Booking Fee (as set forth in Sections 4.a and 4.b). You acknowledge and agree that Shawtout.com does not operate, own, or control the payment provider; and your use of any payment provider is subject to the terms and privacy policies of that payment provider. You agree that we are not responsible for any delay, failure, damage, or liability caused by a payment provider, any other third party, a force majeure, or your failure to timely or properly set up an account with the payment provider or otherwise provide requested information for payment. Other than with respect to any payment to or deduction by the application platform (as set forth in Section 4.b), Shawtout.com will be responsible for fees, costs, and expenses incurred in connection with the payment provider selected by Shawtout.com. Unless otherwise agreed by Shawtout.com in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in these Terms, if Shawtout.com, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with our Site, you acknowledge and agree that we may withhold, delay, or seek repayment of any payments we believe, in our sole discretion, are related to the violation. Shawtout.com may also terminate your access to our Site, remove or ban you, and take other appropriate action in our sole discretion.
e. Currency: Payments via the payment provider are in Philippine Pesos.
f. Fundraising: If you identify any entity on your booking page or elsewhere on our Site as a charitable organization or a recipient of any funds that you are raising (each, a “Charity”), you: (i) represent and warrant that you will comply with all applicable laws and regulations relating to that identification or the Charity, including making disclosures, registering, or entering into any agreement, such as a commercial co-venturer agreement; (ii) acknowledge and agree that we have the right in our sole discretion to reject your identification or the Charity; (iii) represent and warrant that the Charity is and will remain in good standing at all times the identification is used, that within forty-eight (48) hours of your receipt of our request, you will provide us with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions, and that you will promptly remove the identification if the Charity ceases to be in good standing; (iv) represent and warrant that you will be responsible for making any payment to the Charity (unless we expressly agree in writing in advance to do so on your behalf and in satisfaction of our payment obligations to you under these Terms); and (v) represent and warrant that you have all rights necessary to authorize the use of the Charity’s name and logo in connection with (and on) our Site, in the identification, and in any social and other media. You further acknowledge and agree that we may add a statement to your booking page disclaiming a connection between Shawtout.com and the Charity, as we determine in our sole discretion.
5. Talent Content
License Grant to Talent Content: Our Site allows you to upload, submit, store, send, transmit, approve, and receive content and data, including your Shawtout.com Videos and Promotional Materials (collectively, “Talent Content”). When you upload, submit, store, send, transmit approve, or receive Talent Content to or through our Site, you grant to us a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license in any and all manner and media, whether now known or hereinafter invented or devised (including social media channels and third party websites and platforms), to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes we make so that Talent Content works better with our Site or otherwise), and to use your Talent Content for the purposes of operating and providing our Site, to develop and improve our products and services, and to advertise, market, and promote our Site, products, and services, and you agree that such Talent Content may, in Shawtout.com’s sole discretion, be used, including performed or displayed, in connection with any other elements, materials, copyrights, rights of publicity, or copyrighted materials. Please remember that third parties (including Users) may search for and see any Talent Content you submit to public areas of our Site. You agree that we may display advertising with or in connection with your Talent Content. You further acknowledge and agree that Shawtout.com has no obligation to you in connection with any advertising displayed on or in connection with our Site (including no obligation to share any revenue received by Shawtout.com as a result of any such advertising).
License Grant to Users:
For each Shawtout.com Video (other than a Promo Shawtout.com Video), you hereby grant to the User and the Recipient a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, and perpetual license to use, reproduce, distribute, and publicly display the Shawtout.com Video, in each case, solely in accordance with the Site Terms, in any and all media, whether now known or hereafter invented or devised (including social media channels and third party websites and platforms).
For each Promo Shawtout.com Video, you hereby grant to User and the Business for ninety (90) days from the date the Promo Shawtout.com Video is sent by Shawtout.com to the User (and for any additional 90-day periods to which you may agree upon):
a non-exclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display the Promo Shawtout.com Video solely on: one (1) website and one (1) social media account, such as Facebook, Instagram, LinkedIn, SnapChat, TikTok, or Twitter, in each case, wholly-owned, operated, and controlled by the Business; and
the right to advertise and promote the display of the Promo Shawtout.com Video on the social media account through advertising only on the applicable social media platform.
Right to Remove Shawtout.com Videos: You acknowledge and agree that we cannot restrict the use of your Shawtout.com Videos or other offerings by the Users for whom you created them or by any third party with whom they have already been shared (including Recipients) and we have no obligation to remove those uses (including from social media channels or third-party websites or platforms). If we do seek to remove a Shawtout.com Video from a social media channel or third-party website or platform, we may notify you of our intent to do so. As owner of the copyright in your Talent Content, you hereby authorize Shawtout.com to act as your agent in order to submit any Digital Millennium Copyright Act notice or a similar notice or other demand with respect to your Shawtout.com Videos. You will promptly notify us if you learn that any Promo Shawtout.com Video is being used in violation of the Site Terms. We will reasonably cooperate with your efforts to address the violation. However, you acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to use of the Promo Shawtout.com Video for any reason, including if the use exceeds the license granted under this Section 6 or otherwise violates the Site Terms.
Licenses: Please note that the licenses granted in this Section 6 are fully-paid and royalty free, meaning we do not owe you anything in connection with the use of your Talent Content, by us, Users, or third parties (including Recipients and, in the case of a Promo Shawtout.com Video, the Business), other than the payment set forth in Section 4. We may exercise our rights under this license anywhere in the universe. We may sublicense our rights as needed to provide and promote our Site or otherwise in accordance with these Terms, and Users may sublicense their rights subject to the Site Terms. Finally, the licenses granted in this Section 6 are perpetual, meaning that the rights granted under these licenses continue even after you stop using our Site.
Talent Content Representations and Warranties: You represent and warrant that:
you own all rights in and to your Talent Content and Feedback (defined below) and that you have the right to grant the rights described in these Terms;
you have paid and will pay in full any fees, royalties, or other payments that are due or may become due in connection with any use of your Talent Content and Feedback by us, Users, or third parties (including Recipients) as described in these Terms;
your agreement to, and provision of services under, these Terms does not violate any agreement that you may have with any third party;
In connection with each Promo Shawtout.com Video:
you are a resident of the Philippines.;
any statements that you make in connection with the Business are factually correct and not misleading, are not disparaging or defamatory, and represent your true opinion; and
you will comply with all relevant and applicable laws, rules, and regulations, local and international, including such laws which may require adding an appropriate hashtag (e.g. #ad, #sponsored) or other disclosure to the Promo Shawtout.com Video.
your Talent Content and Feedback does not infringe, misappropriate, or otherwise use without necessary authorization, any intellectual property, privacy, publicity, moral, or other rights of any third party, or violate any law, regulation, or court order;
you will not post or make publicly available any Shawtout.com Video that the User has requested not be posted to your booking page;
you will not contact, respond to, or communicate with any User that you meet on or through our Site, except as expressly permitted through our Site.
you will not provide your contact information to any User or send merchandise or anything else to a User other than as permitted by these Terms;
you will not edit, change, modify, or remove the watermark from any Shawtout.com Video or assist or encourage any third party to do so;
you will not ask us for permission or to assist you with the actions prohibited by Sections 6.e(vi) through 6.e(ix); and
except for a Shawtout.com Video that you choose to remake (at no additional cost to the User and with no additional payment due from us) if you receive a review of three stars or less, you will not remake any Shawtout.com Video unless asked by us to do so.
Treatment of Talent Content: Any Talent Content is non-confidential, non-proprietary, and must not contain or include any information which you do not have the right to disclose or that you do not wish to be disclosed. We will not be responsible or liable for any use or disclosure of Talent Content, including any personal information included in that Talent Content. You acknowledge and agree that your relationship with us is not a confidential, fiduciary, joint-venture, employer/employee, agency, or other type of special relationship, and that your decision to participate in our Site or submit any Talent Content does not place us in a position that is any different from the position held by members of the general public, including with regard to your Talent Content. None of your Talent Content will be subject to any obligation of confidence by us, Users, or third parties (including Recipients), and we will not be liable or responsible for any use or disclosure of any Talent Content.
Refusal and Removal of Talent Content: We may refuse to accept or transmit Talent Content for any reason without notice to you. We may remove Talent Content from our Site for any reason without notice to you.
Cancellation of Site Account: If you cancel your Site account, you may, upon at least three (3) business days’ advance written notice to us, request that we no longer include your Shawtout.com Videos on our Site and that we cannot make any new public use of them. As noted in Section 6.c, we have no obligation as to any use of your Shawtout.com Videos by the Users for whom you created them or by any third party with whom they have already been shared (including Recipients) (including from social media channels or third-party websites or platforms).
Other than Talent Content, we or our licensors own all right, title, and interest in and to: (i) our Site and the “look and feel” of our Site, including all software, ideas, processes, data, text, media, and other content available on our Site (individually, and collectively, “Shawtout.com Content”); and (ii) our trademarks, logos, and brand elements (“Marks”). Our Site, Shawtout.com Content, and Marks are each protected under Philippine and international laws. You may not duplicate, copy, or reuse any portion of Shawtout.com Content or use the Marks without our prior express written consent. You acknowledge and agree that each request or message from a User is a Submission (as defined in the Site Terms) owned by the User who created it.
Shawtout.com desires to avoid the possibility of misunderstandings if a project developed by us, our employees, or our contractors might seem similar to material submitted to us by you or a third party. To the extent you submit any ideas, suggestions, proposals, plans, or other materials related to our business (individually, and collectively, “Feedback”), you acknowledge and agree that you are submitting that Feedback at your own risk and that Shawtout.com has no obligation (including of confidentiality or privacy, except as required under the law) with respect to your Feedback, and you grant to Shawtout.com a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works of (for example, translations, adaptations, or other changes), and otherwise use and exploit in any manner (including commercially), any and all Feedback.
You hereby waive any and all moral rights or “droit moral” that you may have in Talent Content or Feedback, and you represent and warrant that no third party has any moral, “droit moral” or other rights in the Talent Content or Feedback.
7. Additional Terms
Some products or services offered through the Site may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available for you to read in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will govern, unless the Additional Terms say that all or some of these Terms don’t apply.
Age: You must be at least 18 years old to use our Site. If you are below 18 years old, your parent or legal guardian must agree to these Terms on your behalf and you may access and use our Site only with permission from your parent or legal guardian.
Eligibility Representations and Warranties: You represent and warrant that:
you have not been prohibited from using or accessing any aspect of our Site by us or pursuant to any applicable law or regulation;
you will comply with all applicable terms of any third-party payment provider we select, and you are not on a prohibited list of that payment provider;
if you include an animal in any Shawtout.com Video, you will cause no harm to the animal and will comply with all applicable laws and regulations;
you (and any Site account that you created or control) have not been previously banned or removed from our Site for any reason; and
you are not a convicted sex offender.
Export Control: You may not use, export, import, or transfer any part of our Site except as authorized by Philippines law, the laws of the jurisdiction in which you use or access our Site, or any other applicable laws. In particular, but without limitation, no part of our Site may be exported or re-exported into any country embargoed by the Philippines. By using our Site, you represent and warrant that: (x) you are not located in a country that is subject to a Philippine Government embargo. You will also not use our Site for any purpose prohibited by law. You acknowledge and agree that products, services, and technology provided by Shawtout.com are subject to the relevant export control laws and regulations of the Philippines. You will comply with those laws and regulations and will not, without prior authorization from Shawtout.com, export, re-export, or transfer Shawtout.com products, services, or technology, either directly or indirectly, to any country in violation of those laws and regulations.
9. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate access to our Site for repeat infringers. If you believe that your material has been copied in a way that constitutes copyright infringement, please forward the following information to [email protected]
your address, telephone number, and email address;
a description of the work that you claim is being infringed;
a description of the material that you claim is infringing and are requesting to be removed, along with information about where it is located;
a statement 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”;
an electronic or physical signature of the copyright owner (or a person authorized to act for the copyright owner); and
a statement by you, made under penalty of perjury, that the information you are providing is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
If you do not follow these requirements, your notice may not be valid. Please note, only notices of alleged copyright infringement should be sent to [email protected]
Termination Policy: If we determine that you are a repeat infringer, we may terminate your access to our Site, remove or ban you (and any Site account you created or control), and take other appropriate action in our sole discretion.
11. Third Party Content and Interactions
Our Site may contain features and functionalities that link to or provide you with access to third party content, that is completely independent of Shawtout.com, including Shawtout.com Videos, websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. Your interactions with third parties, including Users, on or through our Site, are solely between you and the third party; however, Shawtout.com may, in its sole discretion, intercede and you will reasonably cooperate with Shawtout.com if it does so. You acknowledge and agree that Shawtout.com will not be responsible for any damages, losses, costs, expenses, or liabilities incurred as the result of such interactions, including any requests or Submissions from Users. You agree to contact Users about matters relating to our Site only through the Site. You hereby release each Shawtout.com Party (defined below) from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such interactions or our Site.
12. Business Relationship with Shawtout.com
You and Shawtout.com agree and declare that you and Shawtout.com are in a direct business relationship and the relationship between the parties, including these Terms, is solely an independent contractor relationship. It is the parties’ express intent that their relationship be interpreted and held to be that of independent contractor for all purposes. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of Shawtout.com, and will not represent yourself as such. As an independent contractor using our platform to provide marketing, artistic, writing, and photography services to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance under these Terms and you acknowledge and agree that we do not control those elements of your performance. You also retain the option to accept, decline, or ignore any User request. We have no right to, and will not, control the manner or determine the method of accomplishing your performance. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business.
You represent and warrant that as between Shawtout.com and you (whether a Talent User, parent or legal guardian of a Talent User, an Organization, Affiliated Talent, Shawtout.com Partner, or otherwise), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on our Site under these Terms.
You will use your own equipment to perform your obligations under these Terms.
You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.
Your relationship with Shawtout.com is non-exclusive, meaning that you may provide similar services to third parties, including Shawtout.com’s competitors, and you may engage in other business or employment activities. Similarly, we can and do engage third parties to provide services similar to those that you may provide under these Terms.
14. Changes to our Site
You acknowledge and agree that we may change or discontinue any aspect of our Site at any time, without notice to you.
15. Termination and Reservation of Rights
You may cancel your Site account at any time by contacting a member of the Shawtout.com team at [email protected]
We reserve the right to terminate access to our Site to any person, including you, at any time, for any reason, at our sole discretion. If you violate any of these Terms, your permission to use our Site automatically terminates.
16. Disclaimers and Limitations on our Liability
You acknowledge and agree that your use of our Site is at your own risk and that our Site is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, the Shawtout.com Parties disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, non-infringement, and arising out of the course of dealing or usage of trade.
In particular, the Shawtout.com Parties make no representations or warranties about the accuracy or completeness of the content available on or through our Site or the content of any social media platform or third-party website linked to or integrated with our Site. You acknowledge and agree that the Shawtout.com Parties will have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from your access to or use of our Site; (iii) any unauthorized access to or use of our servers, any personal information, or user data; (iv) any interruption of transmission to or from our Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through our Site; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content or the use of any content posted or shared through our Site.
You acknowledge and agree that any material or information downloaded or otherwise obtained through our Site, including a User request, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from us or through our Site, including through a Shawtout.com Video, will create any warranty not expressly made by us.
You acknowledge and agree that when using our Site, you will be exposed to content from a variety of sources, and that Shawtout.com is not responsible for the accuracy, usefulness, safety, legality, or intellectual property rights of or relating to any such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, objectionable, or harassing, and you agree to waive, and do hereby waive, any legal or equitable rights or remedies you have or may have against any Shawtout.com Party with respect thereto.
To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will any Shawtout.com Party be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Shawtout.com has been advised of the possibility of such damages.
To the maximum extent permitted by applicable law, our total cumulative liability to you or any third party under these Terms, including from all causes of action and all theories of liability, will be limited to and will not exceed the fees actually received by Shawtout.com from you or from your services during the twelve (12) months preceding the claim giving rise to such liability.
Certain jurisdictions do not allow the exclusion or limitation of certain damages. If those laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
You agree that the limitations of damages set forth above are fundamental elements of the basis of the bargain between Shawtout.com and you.
You agree to indemnify, defend, and hold harmless Shawtout.com and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, and licensors (each, a “Shawtout.com Party, “ and collectively, “Shawtout.com Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) these Terms; (b) use of our Site; (c) your negligence, misconduct, or fraud; (d) any action or inaction by you or anyone acting on your behalf; (e) any Organization or Affiliated Talent; (f) any Charity; (g) your status as a parent or legal guardian of a Talent User; (h) Talent Content; (i) Feedback; (j) your eligibility with any association, group, authority, or organization or (k) your participation in the Referral Program. Shawtout.com may select counsel and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
18. Arbitration Agreement and Waiver of Certain Rights
Arbitration: You and Shawtout.com agree to resolve any disputes between you and Shawtout.com through binding and final arbitration instead of through court proceedings. You and Shawtout.com each hereby waive any right to a trial before any courts, subject to Section 19.c, of any controversy, claim, counterclaim, or other dispute arising between you and Shawtout.com relating to these Terms or our Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Alternative Dispute Resolution Act of 2004 (the “ADR”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Shawtout.com will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
No Preclusions: This arbitration agreement does not preclude you or Shawtout.com from seeking action by relevant government agencies. You and Shawtout.com each also have the right to bring any qualifying Claim in small claims court. In addition, you and Shawtout.com each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
No Class Representative or Private Attorney General: Each of you and Shawtout.com agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general; or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Shawtout.com). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
Severability/No Waiver/Survival: If any provision of this Section 19 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 19 will continue in full force and effect. No waiver of any provision of this Section 19 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section 19 will survive the termination of your relationship with Shawtout.com.
LIMITATIONS: This Section 19 limits certain rights, including the right to maintain certain court actions, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in the ADR, and the right to certain remedies and forms of relief. In addition, other rights that you or Shawtout.com would have in court may not be available in arbitration.
19. Other Provisions
Force Majeure: Under no circumstances will any Shawtout.com Party be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of any Shawtout.com Party.
Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the Philippines, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature, whenever permitted under these Terms, arising from or relating to these Terms or our Site will be filed only in the courts of competent jurisdiction in the City of Makati, to the exclusion of all other courts. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
No Waiver or Amendment: The failure by Shawtout.com to enforce any right or provision of these Terms will not prevent Shawtout.com from enforcing such right or provision in the future and will not be deemed to modify these Terms.
Assignment: Shawtout.com may, at any time, assign its rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
20 Changes to these Terms
We may change these Terms. If we do, we will post the revised Terms on our Site and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you create an account or login to an existing account, or using or continuing to use our Site after the revised Terms have been posted); otherwise, they will be effective thirty (30) days after posting.
Additional Talent Terms
PLEASE READ THE FOLLOWING CAREFULLY. By offering the product or service, you agree to the applicable additional terms that apply (which are Additional Terms as described in Section 7 of the Talent Terms of Service (“Talent Terms”)). These Additional Terms will be governed by, and are incorporated into, the Talent Terms. Terms that are defined in the Talent Terms or the Site Terms of Service (“Site Terms”) will have the same meaning in these Additional Terms.
From time to time, we may change these Additional Terms. If we do, we will give you notice by posting them on our Site and updating the “Last Updated” date. The revised Additional Terms will be effective immediately. By offering or using or continuing to offer or use the applicable product or service, you represent and warrant that you have read, understood, and agreed to these Additional Terms.
Talent Acceptable Use Policy
Your use of our Site (collectively, the Shawtout.com website and services we provide through them) is governed by this Acceptable Use Policy. Terms that are defined in the Site Terms of Service or Talent Terms of Service will have the same meaning in our Acceptable Use Policy.
You are responsible for your use of any Shawtout.com Video, your Site account, our Site, and any Submission (if you are a Site user) or Talent Content (if you are a Talent User). Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful.
- You represent and warrant that:
you will not use a false identity or provide any false or misleading information;
you will not create an account if you (or any Site account that you created or controlled) have previously been removed or banned from our Site;
you will not use or authorize the use of any Shawtout.com Video for any purposes other than: (i) the specific limited purposes set forth in the Site Terms; (ii) those set out in any applicable Additional Terms; or (iii) if you are a Talent User, those set out in any other written agreement; and
in connection with any Promo Shawtout.com Video, you will not request (if you are a User) or fulfill a request for (if you are a Talent User): (i) a Business or any other Recipient that is the subject of any criminal action, or that is involved in, connected with or promotes illegal or unlawful activity, violence or hate speech; or (ii) disparages or defames any person, entity, brand, or business.
you will not:
violate any law, regulation, or court order;
violate, infringe, or misappropriate the intellectual property, privacy, publicity, moral or "droit moral," or other legal rights of any third party;
take any action (even if requested by another) that is, or submit, post, share, or communicate anything that is, or that incites or encourages, action that is, explicitly or implicitly: illegal, abusive, harassing, threatening, hateful, racist, derogatory, harmful to any reputation, pornographic, indecent, profane, obscene, or otherwise objectionable (including nudity);
send advertising or commercial communications, including spam, or any other unsolicited or unauthorized communications;
engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from our Site, including from any user of our Site;
transmit any virus, other computer instruction, or technological means intended to, or that may, disrupt, damage, or interfere with the use of computers or related systems;
stalk, harass, threaten, or harm any third party;
impersonate any third party;
participate in any fraudulent or illegal activity, including phishing, money laundering, or fraud;
use any means to scrape or crawl any part of our Site;
attempt to circumvent any technological measure implemented by us, any of our providers, or any other third party (including another user) to protect us, our Site, users, Recipients, or any other third party;
access our Site to obtain information to build a similar or competitive website, application, or service;
attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide our Site; or
advocate, encourage, or assist any third party in doing any of the foregoing.
For clarity, your use of any Shawtout.com Video includes use anywhere (on our Site or otherwise).
You acknowledge and agree that we are not obligated to monitor access to or use of our Site by you or third parties (including monitoring any Shawtout.com Video, Talent Content, Submission, or Feedback), but we have the right to do so to operate our Site; enforce this Policy or our Terms; or comply with applicable law, regulation, court order, or other legal, administrative, or regulatory request or process; or otherwise.