Subsplash Terms of Service
Last updated September 14, 2018 – Version 3.5
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING THE SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN (“TERMS OF SERVICE” OR THE “AGREEMENT”). IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU CONFIRM THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION AND THAT THE ORGANIZATION WILL BE BOUND BY THESE TERMS. THE TERM “YOU” OR “YOUR” SHALL REFER TO YOU AND SUCH ORGANIZATION (IF ANY).
This Service is owned and operated by Subsplash, Inc. (hereinafter “Subsplash”, “we” or “us”), except that Subsplash Giving is operated by Subsplash Wallet, LLC (“Subsplash Wallet”).
2. THE SERVICE
Unless you have agreed to a longer term in a separate written agreement, the initial term of this agreement is one year. Thereafter, this agreement will renew automatically from year to year unless you notify Subsplash of your intention to terminate at least thirty (30) days prior to the end of the then-current contract term, in which case your agreement shall terminate on the last day of then-current contract year.
You may open an account by completing the information on the registration pages of Subsplash’s website. You are responsible for maintaining the confidentiality of your user name and password. Your username and/or password may not be assigned or transferred to any other person or entity. You are required to provide your email address in order to open an account. Your email address will help us to verify your identity on future visits. In the event that you register using a non-existent email address or an email address that belongs to someone else, we may terminate your account without notice. You will be responsible for any damage caused by unauthorized access resulting from your failure to keep your password secure.
6. SUBSPLASH GIVING
6.1 To use Subsplash Giving, you must register for that service and provide your bank or other financial institution account information. By registering for Subsplash Giving, you:
a. authorize Subsplash Wallet to act as your agent to collect donations in your name and donor information on your behalf;
b. represent and warrant that all account information that you provide to Subsplash Wallet shall be true and correct;
c. represent and warrant to Subsplash Wallet that at all times during the term of this Agreement, (i) for United States entities, you are and will remain recognized by the Internal Revenue Service as exempt from federal income tax under IRC Section 501(c)(3), and have public charity status under Section 509, and will utilize all donations received through Subsplash Giving in accordance with such tax-exempt status, and your organization shall not violate any restrictions imposed by applicable law on IRC Section 501(c)(3) entities, including but not limited to those proscribing political activity or proscribing the use of your income or assets for a private purpose, or, for Canadian entities, you are and will remain, registered as a charity under the Income Tax Act of Canada with the Canada Revenue Agency (“CRA”); (ii) you understand you may have obligations to register under, and covenant that you shall fully comply and bear the costs associated with, any and all applicable federal, state, provincial and local statutes governing the solicitation of charitable solicitations and donations, including but not limited to fulfilling any registration requirements thereof; (iii) you have completed and submitted the Electronic Funds Transfer Authorization Agreement, (iv) you will promptly notify Subsplash Wallet of any change in your tax-exempt status, and any inquiry by the IRS, CRA or any other federal, state, provincial or local government regarding the matters described in (i) and (ii) above; (v) the donor of any online donation will not receive, nor be promised to receive, any valuable goods or services as a result of such donation; (vi) you agree to indemnify and hold harmless Subsplash and Subsplash Wallet from and against any loss or liability of any kind, including but not limited to fees and costs incurred in defense thereof, resulting from or arising in any manner from, the material breach or inaccuracy of any covenant, duty, representation or warranty set forth herein. Your obligation to indemnify Subsplash and Subsplash Wallet shall survive termination of this Agreement.
d. agree to provide Subsplash Wallet with proof of tax-exempt status and with information for an acknowledgement letter and receipt that will be emailed to the donor automatically and will allow the donor to seek and have evidence for tax deduction purposes.
e. (Unless you choose Monthly Billing) agree that Subsplash Wallet may deduct its service fees from the donation amounts.
f. authorize Subsplash Wallet and/or third parties associated with the processing of payments to debit your depository account in order to collect fees as well as for the purposes of funding refund requests by the donor and/or chargebacks imposed by the applicable credit card company used by the donor.
g. agree that payment to the designated organization will be made approximately a week after receipt of funds from donor and will be sent to the designated organization via electronic funds transfer.
h. warrant and represent that your representatives have legal and financial authority to make legally binding financial decisions on behalf of your organization;
i. authorize us to provide your business name and limited information to financial services providers.
6.2 Account applications with Subsplash Wallet may be declined based on the background/creditworthiness of the applicant.
6.3 Donors who register for recurring gifts consent to be billed on a recurring basis in compliance with applicable legal requirements and card network payment rules (e.g. rules governing use of card networks such as Visa, MasterCard, Discover or American Express).
6.4 In the event of a default under this Agreement or a misuse of applicable funds, Subsplash Wallet and financial service providers facilitating card transactions on your behalf may also report your business name and the name of your principals to the MATCHTM listing maintained by MasterCard and accessed and updated by Visa and American Express or to the Consortium Merchant Negative File maintained by Discover, if applicable, pursuant to requirements of the card network rules. You specifically consent to the fulfillment of the obligations related to this listing by Subsplash Wallet and our payment processor and to the listing itself and you waive and hold harmless Subsplash and Subsplash Wallet from all claims and liabilities resulting from such reporting.
6.5 You may not utilize Subsplash Giving to process cash advances.
6.6 You may not act as a payment intermediary or aggregator or otherwise resell our services.
6.7 Subsplash Giving utilizes Stripe. By registering for Subsplash Giving, you agree to be bound by the Stripe Connected Account Agreement (https://stripe.com/us/connect-account/legal), the Stripe Services Agreement (https://stripe.com/us/legal), and the Wells Fargo Services Addendum (https://stripe.com/wells-fargo/legal).
6.8 You agree that, from the time you begin processing payment with Stripe until you terminate your account with us, we may identify you as a customer of Stripe. Neither you nor we will imply any untrue sponsorship, endorsement or affiliation between you and Stripe.
6.9 Credit card companies permit donors to dispute charges that appear on their bill. A chargeback may result in the reversal of a transaction where you are immediately liable for the amount of the transaction. When a chargeback is issued, you are immediately liable to Subsplash Wallet and/or Stripe for the full amount of the transaction related to the chargeback plus any associated fees, fines, expenses or penalties. You agree that, among other remedies, Subsplash Wallet and/or Stripe may recover these amounts by deducting the amount of the chargeback from any amounts owed to you by us. If we are unable to recover funds related to a chargeback for which you are liable, you will pay us the full amount of the chargeback immediately upon demand. Where such amounts are not immediately paid to us, you agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid chargebacks. Chargeback reserves may be established by Subsplash Wallet or Stripe, or by Wells Fargo based upon risk parameters associated with your processing activity. As a result, donated funds could be held either in whole or in part for an indeterminate time period.
6.10 Subsplash is a PCI-DSS compliant service provider. Subsplash will maintain all applicable PCI DSS requirements to the extent that Subsplash possesses or otherwise stores, processes, or transmits cardholder data on behalf of its customers, or to the extent that Subsplash could impact the security of its customers’ cardholder data environment.
7.1 You acknowledge that your use of the Service may result in Subsplash disclosing certain of its Confidential Information to you. “Confidential Information” refers to certain information that Subsplash reasonably regards as proprietary or confidential relating to its business, customers, products, proposed products, plans, inventions, processes and techniques, including without limitation: (i) information, software, designs, text, graphics, pictures, reviews, and sound files implemented or used by Subsplash in its products or to support its business operations; (ii) trade secrets, business plans, strategies, methods and/or practices; (iii) computer systems architecture and configurations; (iv) information which is governed by any now-existing or future non-disclosure agreement between you and Subsplash; (v) any other information relating to Subsplash that is not generally known to the public, including information about government investigations and actions (where disclosure is permitted) personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (vi) any and all analyses, compilations, or notes prepared which contain or are based on any of the above information.
7.2 You agree to hold in confidence and not use or disclose any Confidential Information except in accordance with this Agreement. You may disclose Confidential Information, on a need-to-know basis, to your personnel who have agreed in writing to non-disclosure terms at least as protective as the provisions of this Section, for purposes permitted in this Agreement, subject to the condition that you shall be liable for their breach of this Section.
7.3 The obligations set forth in this Section do not apply to Confidential Information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party. Notwithstanding the Confidentiality Obligations set forth in this Section, each party may disclose Confidential Information of the other party as permitted by law (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
7.4 You agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to Subsplash and that, in the event of such breach, Subsplash will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
8. INTELLECTUAL PROPERTY
8.1 Service Materials. Unless otherwise indicated, the Service and all content (other than Customer Materials), including, without limitation, the Subsplash trademarks, Subsplash Media App logos, and all designs, text, graphics, images, information, data, software, documentation, sound files, other files and the selection and arrangement thereof (collectively, the “Service Materials”) are the property of Subsplash and are protected by U.S., Canadian, and international copyright, trade secret and other intellectual property laws. The following actions are specifically prohibited: (a) any resale, lease or rental of the Site or the Service Materials therein; (b) the distribution, public performance or public display of any Service Materials; (c) modifying or otherwise making any derivative uses of the Site, the Service Materials, or any portion thereof; (d) use of automated means, including spiders, robots, crawlers, offline readers, data mining tools, or the like to download data from the Site or Service or to cause an overload of Subsplash servers ; (e) downloading (other than page caching) or copying any portion of the Site, the Service Materials or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Subsplash’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service; (g) collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes; (h) use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (i) any use of the Service or the Service Materials other than for their intended purpose. Any use of the Service or the Service Materials other than as specifically authorized herein, without the prior written permission of Subsplash, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
8.2 Subsplash Media App. You shall retain ownership of any and all logos, and all designs, text, graphics, images, information, data, software, sound files, other files and the selection and arrangement thereof provided by you for incorporation into, or provided by you through data feeds to, the Service, including but not limited to the Subsplash Media App (“Customer Materials”). Inasmuch as the Subsplash Media App is owned by Subsplash, it may not be lawfully used outside of the Service. Only Subsplash may post the Subsplash Media App to the Apple iTunes App Store, Google Play, Windows Phone App Store, Amazon App Store, the web, or any other platform. The Subsplash Media App shall not be transferred to or submitted on third party developer accounts except at Subsplash’s discretion. Any violation of the foregoing limitations may result in (without limitation) termination of the Service and/or termination of this Agreement.
8.3 Feedback. Any suggestions, ideas or feedback concerning the Service provided by you to Subsplash shall become the sole property of Subsplash. Subsplash shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and circulation thereof for any purpose, without acknowledgment or compensation to you.
9. COPYRIGHT POLICY
Subsplash respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Customer Materials alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Subsplash will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Service is:
Address: 3257 16th Ave W #200, Seattle WA 98119
10. LIMITATIONS ON USE OF THE SERVICE
Any use of the Service that violates this Agreement is strictly prohibited and may result in your exclusion from the Service, and the removal of the Subsplash Media App from any network, store, or server, and any other platform on which the Subsplash Media App has been published. Unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. You agree to use the Service and any information obtained from the Service and your use thereof solely for the purposes authorized by these Terms of Service. You will not circumvent Subsplash’s intended limitations for any feature of the Service as reflected in the Subsplash documentation from time to time. You will not encourage or promote the use of the Service in any manner or for any purpose that is not permitted under these Terms of Service. You will not use or attempt to use the Service in any manner that is unfair, deceptive, or otherwise unlawful or harmful to Subsplash, any Subsplash clients, or any other third party. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
11. USE ONLY BY YOUR ORGANIZATION AND ONWARD TRANSFERS
You may not transfer or assign your rights under this Agreement to any third party and any attempt to do so shall be void.
The Service, including without limitation any Subsplash Media App, shall only be distributed to end users by Subsplash through the app networks, app stores, servers, and platforms selected by Subsplash, utilizing in every case a form of license acceptable to Subsplash. Violation of the provisions of this Section may result in deactivation of the Service, or any part thereof, without refund.
You may not make the Subsplash Media App available to another entity for inclusion of its materials and you may not rent, lease, or sell the Service to third parties or otherwise provide other entities with the ability to distribute their materials through the Subsplash Media App unless it is specifically identified as your materials. You agree not to resell, republish, duplicate, reproduce or exploit any part of the Service without Subsplash’s prior written permission.
If Subsplash gathers personal information from EU data subjects on your behalf, you agree that such data may only be processed for limited and specified purposes consistent with consent provided for such data by the data subject and that you will provide the same level of protection as is required by the EU-U.S. Privacy Shield Principles.
12. DATA FEEDS; RESTRICTIONS ON CUSTOMER MATERIALS POSTED
You shall be solely responsible for establishing, and maintaining a connection to the Internet, and providing the required data feeds to support proper function of the Subsplash Media App. By providing Subsplash with Customer Materials, you grant Subsplash an irrevocable, perpetual, royalty-free, fully sub-licensable, fully paid up, worldwide license to use, copy, transmit, publicly perform, digitally perform, publicly display, and distribute the Customer Materials through the Subsplash Media App, the Site, and any platform, network, store, server, in the Internet. This license is non-exclusive, except you agree that Subsplash shall have the exclusive right to combine Customer Materials with a Subsplash Media App. You represent and warrant that you possess all rights needed to authorize Subsplash to use, copy, transmit, publicly perform, digitally perform, publicly display and distribute the Customer Materials as provided herein.
You may not use the Service in a prohibited manner or include in the data feed any Customer Materials that is prohibited. Subsplash reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Customer Materials served through the Subsplash Media App and terminating the violator’s Service without refund. We value integrity, truth, and respect for others, and we strive to avoid offending users with content, apps, or websites that are objectionable or inappropriate. For this reason, we don’t allow the publication or promotion of hatred; violence; racism; blasphemy; or sexual, religious, or political content or activity that violates or disparages traditional Christian scripture and values, or organizations with such views.
The following is prohibited: Harassment or perceived harassment of another person; Unsolicited mass mailings or “spam;” Customer Materials determined by Subsplash to be illegal, or to violate any local, state, provincial, or federal law or regulation or the rights of any person or entity; Harmful, offensive and abusive language, including but not limited to hate speech, expletives, harassment, obscenities, vulgarities, sexually explicit language, images, video or other materials that risk offending community standards (e.g. nudity, bestiality, pornography); Customer Materials that are inappropriate based on the subject matter; Customer Materials that are encrypted or that contains viruses or any other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system or information; and Customer Materials that violate the intellectual property rights of any person.
You agree that you will only submit information that you believe to be true and you will not purposefully provide false or misleading information.
You further agree that you will not: Modify, adapt, translate, or reverse engineer any portion of the Service; Take any action that creates an unreasonably large load on our IT infrastructure; Use the Service to violate the security of any computer network, crack passwords or security encryption codes; transfer or store illegal material including that are deemed threatening or obscene; Create user accounts by automated means or under false or fraudulent pretenses; or Collect information about other users for any improper purpose.
13. CONSENT TO RECEIVE EMAILS
By using the Service, you consent to receive emails from Subsplash, which may include commercial emails. We may use your information to send you news or product updates. You may “opt out” of receiving marketing or promotional email from Subsplash by following “unsubscribe” instructions or using “unsubscribe” links within communications we send. Please note, however, that as long as you maintain an account, you may not “opt out” of receiving service or account-related emails from Subsplash.
14. RIGHT TO UPGRADE SERVICE
Subsplash reserves the right to upgrade and/or change the Service at any time without notice.
15. PAYMENT FOR SERVICES
The service fee for any configuration services, media app publication services, maintenance services, or any other services provided to you by Subsplash shall be the fees so described when you order these services through the Site, or, alternatively, the fees identified in a written Statement of Work (if any), which incorporates these Terms of Service. Upon your acceptance of a Statement of Work, you authorize Subsplash to bill your credit card for the specified deposit stated therein. Upon your payment of the deposit amount, Subsplash shall begin configuring a Subsplash Media App according to the specifications in the Statement of Work. When you authorize Subsplash to charge your credit card for the monthly service fees associated with the service plan selected by you, Subsplash will submit the Subsplash Media App for publication on the platform you selected. Subsplash shall charge your credit card in the amount of the agreed Monthly, Quarterly, or Annual fee each Month, Quarter, or Year in advance. You represent and warrant that all credit card, Automated Clearing House (ACH), and or other payment and related information that you provide to Subsplash for such purposes shall be true and correct. You must promptly inform Subsplash of any changes in your credit card information. You may make changes to your credit card information on your user profile webpage. All payments shall be made in U.S. dollars. The charges included here do not include taxes. If Subsplash is required to pay any federal, state, provincial or local sales, use, property or value added taxes including, without limitation, GST and/or provincial sales tax based on the Service provided under this Agreement, the taxes shall be separately billed to you, unless you are able to provide proof of appropriate, qualifying tax exempt status. Subsplash shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by you. Upon your failure to pay monthly fees, you authorize Subsplash to remove the Subsplash Media App from any and all platforms on which the Subsplash Media App has been published. Prepaid fees are non-refundable.
After the first year of Service, you may terminate the Service and your monthly payment obligations if you notify Subsplash at least thirty (30) days in advance. If you have not completed your first year of service or you have received a special promotional offering, and you wish to terminate your Service early, you will be required to pay a $500 cancellation fee or the remainder of your subscription fees. Special promotional offerings (including but not limited to $0 setup options) may require a two or three year subscription, which will be disclosed during signup. In the event that Subsplash chooses to increase rates, it shall provide you with email notification of such increase at least thirty (30) days in advance and you may elect to terminate the Service prior to such increase becoming effective by contacting Subsplash by email.
6. NON-SOLICITATION AND NON-COMPETITION
During the term of this Agreement and for a period of two years from the date your account expires or is terminated, you will not solicit those vendors or customers of Subsplash that you learned of or with whom you developed relationships as a result of your relationship with Subsplash nor will you divert or attempt to divert from Subsplash any business Subsplash enjoyed or solicited from such customers and to the extent that you gained Confidential Information from Subsplash, you shall not enter into competition with Subsplash in the United States or Canada.
17. NONINTERFERENCE WITH SUBSPLASH EMPLOYEES
During the time that your account is active and for two (2) years following, you agree that you will not:
a) induce, or attempt to induce, any Subsplash employee to quit Subsplash’s employ,
b) recruit or hire away any Subsplash employee, or
c) hire or engage any Subsplash employee or former employee whose employment with Subsplash ended less than one year before the date of such hiring or engagement.
Subsplash does not guarantee acceptance of any Subsplash Media App or data by Apple, Inc. or gatekeepers of other platforms, networks, stores or servers. If the Subsplash Media App is rejected by them for code defects, Subsplash will correct them and resubmit them as soon as reasonably possible. If the Subsplash Media App is rejected for any other reasons (content, feeds, branding, etc.), Subsplash will use the allocated consulting hours, as provided in the Statement of Work, to assist you in making necessary corrections and resubmitting the Subsplash Media App. This warranty to you shall be null and void if you are in default under this Agreement.
Closing your account shall not relieve you of the obligations and/or restrictions stated herein.
20. DISCLAIMER OF WARRANTIES
EXCEPT AS STATED ABOVE, THE SERVICE AND THE SERVICE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS STATED ABOVE, SUBSPLASH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INTELLECTUAL PROPERTY INFRINGEMENT. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, THE SERVICE MATERIALS, OR ANY OF THE INFORMATION AVAILABLE IN OR ON THE SITE, THE SUBSPLASH MEDIA APP, OR ANY OTHER PART OF THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT IT’S SERVERS OR ANY PART OF THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
21. LIMITATION OF LIABILITY
IN NO EVENT SHALL SUBSPLASH OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH THE SERVICE OR THE CUSTOMER MATERIALS AND THE SERVICE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM SUBSPLASH, THE SITE, THE SUBSPLASH MEDIA APP, OR ANY OTHER PART OF THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SUBSPLASH’S RECORDS, PROGRAMS OR SERVICES. THE AGGREGATE LIABILITY OF SUBSPLASH, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SITE, THE SUBSPLASH MEDIA APP, ANY OTHER PART OF THE SERVICE, OR THE SERVICE MATERIALS, SHALL NOT EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO SUBSPLASH.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH\, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
22. INDEMNITY/HOLD HARMLESS
You agree to indemnify, defend and hold Subsplash, its subsidiaries, affiliated companies and their respective shareholders, directors, officers, employees, agents, attorneys, successors and/or assigns, (the “Indemnified Parties”) harmless from, and to reimburse the Indemnified Parties for, any claims, cost, expenses, losses, demands, damages, legal fees and costs, penalties, and/or liabilities of any kind or nature, resulting from or relating in any way to your use of our Service. You further agree to indemnify, hold harmless and defend Subsplash against any claims asserted or threatened against Subsplash by your end users related to or arising in any way out of your breach of warranties or representations, services, operation of your organization, use of our Service, or failure to provide services. We may defend any such claim, at our option, and you must pay our attorney fees and costs. This indemnity will continue in full force after expiration or termination of this Agreement.
23. APPLICABLE LAW AND VENUE
These Terms of Service and your use of the Service shall be governed by and construed in accordance with the laws of the United States of America and the State of Washington applicable to agreements made and to be entirely performed within the State of Washington (even if your use is outside of the State of Washington), without resort to its conflict of law provisions. You agree that with respect to any disputes or claims not subject to arbitration (as set forth below), any action at law or in equity arising out of or relating to the Service or these Terms of Service shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent, attorn, and submit to the exclusive jurisdiction of such courts.
If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. If there is any overlap or similarities with other previous agreements between you and Subsplash, these Terms of Service shall supersede those other agreements.
One or more patents owned by, or patent applications submitted, by Subsplash may apply to this Service and to the features or services accessible via the Service.
27. ACCREDITATION AND PROMOTION
The launch screen of the Subsplash Media App shall bear a copyright notice and the branding of Subsplash in the form, size and location chosen by Subsplash in its discretion. The Subsplash Media App’s graphical user interface shall display copyright information and the credit “Designed + Developed by Subsplash” or similar credit in the form, size and location chosen by Subsplash in its discretion. Subsplash retains the right to reproduce, publish and display static screen shots, motion demos, and other representations of the Subsplash Media App with your name and logo in Subsplash-owned and affiliated portfolios and websites, and in galleries, design periodicals and other media or exhibits for purposes of publicity. In the app stores and marketplaces, keywords “Subsplash” and/or “The Church App” must be included and credit to Subsplash must be included in the app description. In all other places where the Subsplash Media App is marketed or distributed, you shall add the following statement “Designed + Developed by Subsplash. Copyright © 2009-2017 Subsplash” or similar credit in the form, size and location chosen by Subsplash in its discretion, and include a link to the Site if the statement is made in electronic format.
28. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by you without the prior written approval of Subsplash but may be assigned without your consent by Subsplash to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
If any of these Terms of Service should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Subsplash.
No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
32. FORCE MAJEURE
If the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered, or delayed by such causes.
33. ENTIRE AGREEMENT