TERMS OF USE

Last Modified on February 14, 2013

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to Splash. This Terms of Use (this “ToU”) describes the terms and conditions applicable to your access and use of the Site and the products and services offered through, or in connection with, the mobile application(s) entitled “Splash” (collectively, the “App”) and the the splash.io website (the “Site”) (collectively, the “Service”). This ToU sets forth the terms and conditions under which Splash Technologies, Inc. (“Splash,” “we,” or “us”) provides you access to the Site, Software and the Service. As used in this Agreement, the term \"Software\" means collectively the App, any toolsets, engines and/or technologies included within the App, any online or enclosed documentation, any and all copies and/or derivative works of the App, related software and/or documentation, including without limitation, any and all “patches,” future programming fixes, updates and upgrades provided to you.

Splash may amend this ToU at any time by posting the amended Terms of Use on the Site, and you agree that you will be bound by any changes to this ToU. For your convenience, the date of last revision is included at the top of this page. Splash may make changes to the Site, Software and/or the Service at any time. You understand that Splash may discontinue or restrict your use of the Site and/or Service for any reason or no reason with or without notice.

Your use of the Site, SOFTWARE AND/OR THE SERVICE, DOWNLOADING THE SOFTWARE, or BY clicking “I ACCEPT” if presented with THIS TOU in a click-through format, signifies that you agree to THIS TOU and constitutes your binding acceptance of THIS TOU, including any modifications that Splash makes from time to time.

  1. Privacy Policy. By clicking \"I ACCEPT\" or using the Site, Software or the Service, you represent that you have read and consent to our Rules of Conduct, into this ToU by this reference, and Privacy Policy. Splash may revise the Rules of Conduct and Privacy Policy at any time, and the new versions will be available at the above links. If at any point you do not agree to any portion of the Rules of Conduct or the Privacy Policy, you must immediately stop using the Site and/or Service.
  2. Requirements. The Software will not function unless it is installed or accessed on a computer or mobile device which meets its minimum requirements. You may only use the Software and the Service if you have agreed to this Agreement. Before you can use the Service, you must: (a) agree to this ToU and the Privacy Policy; (b) install a valid copy of the App software and register for an account on the Service (an “Account”); and (c) meet the hardware and connection requirements published on the Site. The Service may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Splash to enforce any of your rights in relation thereto. These requirements may change as the Service evolves. You are responsible for any internet connection or data transmission fees that you incur when accessing the Service.
  3. ToU Updates. Splash will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site at http://splash.io/l/terms-of-use. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
  4. App Updates. In an effort to improve the Service, Splash may require that you download and install updates to the App software. You acknowledge and agree that Splash may update the Software or otherwise update the App itself with or without notifying you. All modifications or enhancements to the Software remain the sole property of Splash.
  5. Termination of Service. This Agreement will be effective as of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until termination by either party as set forth below. As used herein, the term \"Term\" means the period of time from the date you accept this Agreement until the date this Agreement terminates or expires. You may terminate this Agreement at any time provided you cease all use of the Software and Service AND destroy or remove from all hard drives, networks, and other storage media all copies of the Software in your possession. The Service is a closely-controlled virtual environment owned and maintained by Splash, and Splash reserves the right to deny service to any player at Splash’s sole and absolute discretion. The Service is offered with the understanding that Splash may terminate this Agreement and/or any Account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of the ToU. Splash may stop offering and/or supporting the Service at any time. Upon termination of this Agreement for any reason (i) all licenses and rights to use the Software and Service shall terminate and you must remove the Software from your computer equipment and dispose of all originals and copies of the Software in your possession, and (ii) Sections 5, 6.9 and 7 through 21 shall survive such termination.
  6. License, Access and Security.
    1. Limited License. The Service is available for use only by authorized end users in accordance with the terms and conditions set forth in these ToU. The Service is provided for, and Splash grants you a non-exclusive, non-transferable, revocable, limited license, subject to all limitations provided herein, to download, install and use the Software onto a computer and to access and use the Service using an Splash-supported web browser or mobile device solely via the Software or your SNS Account for your individual, non-commercial, entertainment purposes. Except as may be expressly permitted by Splash, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Service. If you access the Service from an SNS you shall comply with its terms of service/use as well as these ToU.
    2. Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. You may allow your minor children for whom you are the parent or legal guardian to use or access the App using your Account, provided, however, that you accept full responsibility for the conduct of the children using your Account.
    3. Account. To access or use certain portions of the Service, you may be required to have a valid account on the social networking service (“SNS”) through which you connect to the Service, if any, or have an account with the applications provider for your mobile device. You may only access the Service through one (1) Account per platform or SNS, at any given time. If your contact information changes, you agree that you will promptly update the Account information to reflect those changes. You understand that if you access certain portions of the Service through your SNS-linked Account or otherwise use your Account to display or post to your own SNS account, your name and profile picture may be publicly available and that search engines may index your name and profile photo. You agree that you shall not create an Account or access the Service through an Account if you (i) are under the age of 13, (ii) are a convicted sex offender, (iii) if you have previously been removed by Splash or banned from using the Service, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
    4. Access. You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
    5. Fees. While we do not currently charge any fees for the Service, it is possible that in the future some aspects of the Service may require you to pay a fee, the details of which will be made available at a future time. Splash may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these ToU or elsewhere on the Site.Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify Splash immediately if you believe that your Account username and/or password have been compromised.
    6. Account Sharing or Transfers. You may not share or transfer your right to access the Service through your Account, except that you may permit your minor child to use an Account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your username and password to anyone other than a minor child as set forth herein.
    7. Cancellation by You. You have the right to cancel the registration of your Account for the Service at any time. You may cancel any Account registered to you by following the instructions on the Site.
    8. Effect of Account Termination or Cancellation. If you voluntarily terminate the registration of your Account or allow that Account to lapse, you may reactivate that Account as a registered account for the Service at any time through the account interface on the Site. Accounts restricted for use by Splash for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason.
  7. Restrictions and Conditions of Use.
    1. Use of Site and Service. Splash permits you to view and use a single copy of the Site and the Software (on a per platform basis) for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site, Software and/or Service. You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument (e.g. PayPal and Facebook Credits) by minors.
    2. No Violation of Laws. You agree that you will not, in connection with your use of the Site, App, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the App, Site, Software and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
    3. Misuse of Site and/or Service. You may not connect to or use the Site, Software and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site, Software and/or Service or otherwise attempt to disrupt the Site, Software and/or Service or any other person's use of the Site, Software and/or Service; or (b) attempt to gain unauthorized access to the Site, Software, Service, Accounts registered to other users, or the computer systems or networks connected to the Site, Software and/or Service; or (c) modify, disassemble, decompile or reverse engineer the Software, except to the extent that such restriction is expressly prohibited by law. You may not remove any proprietary notices from any copy of the Software. Furthermore, you may not use the Site, Software and/or Service to develop, generate, transmit or store information, including but not limited to any Submission, that: (i) is, harmful, obscene, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, abusive, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or promotes bigotry, discrimination or violence; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service, (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias) or accesses, uses or posts to any other person’s SNS account; (vii) involves commercial activities (whether or not for profit) and/or sales without Splash’s prior written consent such as contests, sweepstakes, barter, advertising or pyramid schemes; (viii) violates any applicable law, regulation or ordinance; or (ix) makes false, misleading or deceptive statements or representations regarding Splash or the Service. You acknowledge and agree that you may be restricted from making certain Submissions based on any file size and bandwidth limitations that we may implement from time to time.
    4. Third Party Software and Services. The Service and the App may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to Beats to enforce any of your rights in relation thereto. The Service and App may from time to time include various features that operate in conjunction with Facebook, Twitter, Instagram and/or other certain third party social networking websites that you visit (\"SNS Features\"), including but not limited to the ability to upload photos you may maintain through such social networks. For example, if you decide to access the App by logging in through Facebook Connect, you are using the personal information you have already provided to Facebook (such as your “real” name, email address and other information you make publicly available via Facebook) to create your Submissions; the information we collect may depend on the privacy settings you have with Facebook, so please consult Facebook’s privacy and data practices. While your use of the Social Network Features is governed by this Agreement, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for Splash to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT SPLASH WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
    5. No Commercial Uses. You agree that you will not use the App, the Site, Software or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the App, the Site, Software or Service.
    6. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation information about your character, other players, virtual items, or other App data, using any method not expressly permitted by Splash; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the App, Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the App, the Site, Software or the Service.
    7. No Emulators. Only Splash is authorized to host a service that connects to, or interfaces with, the App. You agree that you will not host, provide matchmaking services for, emulate or redirect communications originating from the App, Software or the Service. You may not establish an emulated App environment, and doing so may result in civil and/or criminal liability.
    8. Interactions with other Users. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the. Splash reserves the right, but has no obligation, to become involved in any way with these disputes. If you have a dispute with one or more users, you release Splash (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: \"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.\"
  8. User Content.
    1. Submitted Content. Splash does not claim ownership of Submissions (as defined below) or any other materials you make available through the Site, App or the Service. At Splash’s sole discretion, such materials may be included in the Service in whole or in part or in a modified form. With respect to such materials you submit or make available for inclusion on the Site, the App or through the Service, You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. You acknowledge and agree that Splash may sublicense such rights to your Submissions to its sponsors and affiliates, and may use such Submissions in any and all marketing or promotional materials. You hereby represent, warrant and covenant that any materials you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 8.1. You acknowledge that Splash is under no obligation to publish or respond to any Submissions you may make on or through the Service. You understand that the use of such features are for entertainment value only and Splash assumes no responsibility or liability with respect to its use of such Submissions. None of the Submissions will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Submissions. You agree that you may not upload or otherwise transmit on or through the Site, App and/or Service any Submission that is subject to any third-party rights. You hereby grant each all other users of the Service a non-exclusive license to access your Submissions through the Service, email, and mobile phone and to display parts of Submissions as permitted through the functionality of the Service and under these ToU.
    2. User-Provided Submissions. The Service provides users with the ability to post photos, messages, images, location markers, comments on and through the Site, the App and the Service and to communicate with other users of the Service through the Service. Splash is under no obligation to review any messages, information or content (including data, text, music, sound, photographs, graphics, video, messages or other materials) (“Submissions”) posted on or submitted through the Site or Service by you or other users and assumes no responsibility or liability relating to any Submissions. Splash does not pre-screen, monitor, review or edit the Submissions posted by users. The Service may provide users the opportunity to flag Submissions for review by Splash for compliance with these ToU or other suitability requirements. Notwithstanding the above, Splash may from time to time monitor the Submissions on the Site and may remove any Submissions at its sole discretion, including in response to matters flagged by other users. Splash is not responsible, however, for any failure, non-failure or delay in removing such Submissions. You will remain responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of such submitted material, including any Submission or part thereof, or other communication to Splash. Users are encouraged to always keep backups of your Submissions. Splash is not responsible if any of your Submissions are deleted, or if any modification, suspension, or discontinuation of the Site or Services causes you to lose any Submissions.
    3. You acknowledge and agree that Splash may preserve Submissions and may also disclose Submissions if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these ToU; (c) respond to claims that any Submission violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Splash, its users or the public. However, Splash assumes no responsibility for the deletion or failure to store Submissions submitted by you or other users of the Site or Services.
    4. You further acknowledge and agree that the views expressed on the Site and through the Service do not necessarily reflect the views of Splash, and Splash does not support or endorse Submissions (whether or not edited by Splash) posted or submitted by you or any other user.
    5. Certain Submissions to our Site and Service may be made through accounts you or other users may have with third party service providers such as Facebook, Twitter or Instagram. Your use of such accounts will be governed by any applicable third party terms and conditions and privacy policies. This ToU and our Privacy Policy are effective as of the date set forth above and are only applicable to the Site and the Service and not to any other website or service that you may be able to access from the Site or through the Service which may have its own data collection and use practices and policies.
  9. Ownership. As between you and Splash and/or its licensors, Splash and/or its licensors own the Site, Software, Service, the App, and all virtual assets made available in the Site, Software, Service and App, including, without limitation, all artwork, images, music, other application assets and data generated by the Service (collectively, “App Assets”). Splash and its licensors reserve the exclusive right to create derivative works based on the Site, Software, the Service, App, App Assets and/or Submissions. You agree that you will not create any work of authorship or create any derivative works based on the Site, Software, the App or the Service except as expressly permitted by Splash. Any reproduction or redistribution of the Site, Software or the App, or use of the Service not in accordance with the ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.
  10. App and Commercialization.
    1. App Assets; Prohibition on Out of Service Exchange. You hereby acknowledge and agree that:

You may obtain or access certain App Assets through participating in the Service. You acknowledge and agree that Splash may change, modify, delete, remove or otherwise alter the appearance, function, use and/or properties of any App Assets at any time, in its sole discretion.

You agree that you will not buy, sell or trade, or offer to buy, sell or trade, any App Assets. For the avoidance of doubt, and in no way limiting the foregoing, you are prohibited from offering for sale or purchasing any App Assets outside of the Service, through a website, or any other medium, or exchanging App Assets, whether inside or outside the Service, for anything of value outside the Service or in the real world.

    1. Account Suspension. Splash reserves the right to reduce, liquidate, deactivate, suspend or terminate your access to the Service through your Account and/or any App Assets or access thereto if Splash suspects, after investigation, that you have used any aspect of the Service to conduct any fraudulent or illegal activity.
    2. No Account Transfers/Sales. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances.
  1. Links.
    1. Links from the Site. The Site may contain links to websites operated by other parties, including advertisers. Splash provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of Splash, and Splash is not responsible for the content available on the other sites. Such links do not imply Splash’s endorsement of information or material on any other site and Splash disclaims all liability with regard to your access to and use of such linked websites.
    2. Links to the Site. Unless otherwise set forth in a written agreement between you and Splash, you must adhere to Splash’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Splash’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Splash, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (iv) Splash reserves the right to revoke its consent to the link at any time and in its sole discretion.
  2. Notice for Claims of Copyright Infringement.

If you are a copyright owner or agent thereof and believe that content posted on the Site by a Splash user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright;

(b) a description of the copyrighted work that you claim has been infringed;

(c) the URL of the location on our website containing the material that you claim is infringing (or, the material appears in-App, identification of the App, the digital store through which the App was downloaded, user name of the user posting such material (if available), and any other identifiable information regarding the location of the material);

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

(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent can be reached by mail at: Splash Technologies, Inc., [address] ATTN: Splash Technologies, Inc. Copyright Agent, or by email at copyright@splash.io. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.

  1. Intellectual Property.
    1. Trademarks. “Splash” and related logos and distinctive likenesses thereof are the exclusive property of Splash. Splash and the Splash logo are trademarks/service marks of Splash. Unauthorized use of any Splash trademark, service mark or logo may be a violation of federal and state trademark laws.
    2. Copyright.The Site, Software, Service and App are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, Software, Service or App, or individual sections of the content, design or layout of the Site without Splash’s express prior written permission.
  2. Unsolicited Idea Submissions. Neither Splash nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved applications or technologies, product enhancements, marketing plans or names for new applications (collectively “Unsolicited Ideas”). Please do not send your Unsolicited Ideas to Splash or its employees and/or contractors. Our policy is aimed at avoiding potential misunderstandings or disputes when Splash’s products or strategies might seem similar to Unsolicited Ideas that are submitted. If, despite our request that you not send us your Unsolicited Ideas, you still submit your Unsolicited Ideas to us or to any of our employees and/or contractors, then, you hereby grant us and our designees a worldwide, non-exclusive, sublicenseable, assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and license, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others.
  3. Location.

The Site and the Service are operated by Splash in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.

  1. Children.

The Site and the Service are not directed toward children under 13 years of age nor does Splash knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to Splash.

  1. Disclaimer of WarrantIES.

THE SITE AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SPLASH MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE, THE APP AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE APP, THE SERVICE AND/OR THE CONTENT AVAILABLE ON THE SITE, THE APP AND/OR SERVICE IS AT YOUR SOLE RISK. SPLASH DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE, THE APP AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE, THE APP OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, THE APP OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.

  1. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPLASH, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE APP AND/OR SERVICE, EVEN IF SPLASH AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF SPLASH OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Splash and its affiliates shall be limited to the fullest extent permitted by law.

  1. Indemnification. You agree to indemnify, defend and hold Splash and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU or any other policies that Splash may issue for the Site and/or Service from time to time.
  2. Dispute Resolution and Governing Law.
    1. Governing Law; Jurisdiction. This Agreement is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 20.2 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Properties shall be subject to the exclusive jurisdiction of the state and federal courts located in the County of Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts.
    2. Binding Arbitration.
      1. Arbitration Procedures. You and Splash agree that, except as provided in Section 20.2(d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 20.2 and the JAMS Rules, the terms in this Section 20.2 will control and prevail.

Except as otherwise set forth in Section 20.2(d), you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Splash may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND Splash WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

(b) Location. The arbitration will take place in your hometown area if you so notify Splash in your notice of arbitration or within ten (10) days following receipt of Splash’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in the County of Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.

(c) Limitations. You and Splash agree that any arbitration shall be limited to the Claim between Splash and you individually. YOU AND SPLASH AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

(d) Exceptions to Arbitration. You and Splash agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Splash’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

(e) Arbitration Fees. If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. Notwithstanding Section 21.5 of this Agreement to the contrary, you will not be required to pay our attorneys’ fees or other costs if you do not prevail in the arbitration.

(f) Severability. You and Splash agree that if any portion this Section 20 is found illegal or unenforceable (except any portion of Section 20.2(d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 20.2(d) is found to be illegal or unenforceable then neither you nor Splash will elect to arbitrate any Claim falling within that portion of Section 20.2(d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, State of California, United States of America, and you and Splash agree to submit to the personal jurisdiction of that court.

  1. General.
    1. TOU Revisions. This ToU may only be revised in a writing signed by Splash, or published by Splash on the Site.
    2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Splash as a result of this ToU or your use of the Service or the App.
    3. Assignment. Splash may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Splash’s prior written consent, and any unauthorized assignment by you shall be null and void.
    4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
    5. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
    6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
    7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Splash Technologies, Inc., 401 Washington Ave. Suite 105, Santa Monica, CA 90403.
    8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
    9. U.S. Government Rights. If you are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the App is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this Agreement.
    10. Equitable Remedies. You hereby agree that Splash would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
    11. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.