TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY USING OUR SERVICE OR WEB SITE ("SITE") (THE TERM "SERVICE" SHALL HEREINAFTER REFER TO BOTH THE SITE AND THE SERVICE UNLESS THE CONTEXT INDICATES OTHERWISE) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN ("TERMS OF SERVICE"). 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 TJET, LLC dba Subsplash (hereinafter "Subsplash", "we" or "us").
Through this Service, subject to these Terms of Service, 1. Subsplash provides configuration tools, configuration services, Media App publication and maintenance services; 2. Subsplash provides documentation and API to clients and business associates.
You may open an account by completing the information on the registration pages of this Site. 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.
You shall not disclose to any third party any information provided to you by Subsplash which is marked "Confidential" or which, under the circumstances, should be understood to be confidential.
The Obligations set forth in this Section ("Confidentiality") do not apply to 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.
Unless otherwise indicated, the Service and all content and other materials on this Site including, without limitation, the Subsplash trademarks, the Media App logo, 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. 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 or 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 or the Site; (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 Site or the Service Materials other than for their intended purpose. Any use of the Site 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.
Media App--Only Subsplash may post the Media App to the Apple iTunes App Store, Android Market, the web, or any other platform. The Media App shall not be transferred to third party developer accounts. Inasmuch as the Media App is owned by Subsplash, it may not be lawfully used outside of Subsplash Services. Any violation of the foregoing limitations may result in (without limitation) termination of Services and/or termination of this Agreement .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 ("Customer Materials") provided by you for incorporation into the Media App or provided by you through data feeds to the Media App.
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.
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 content 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 Services is:
Attn: Subsplash Legal
Address: 3257 16th Ave W, Seattle WA 98119
LIMITATIONS ON USE OF SUBSPLASH SERVICE:
Any use of the Service that violates this agreement is strictly prohibited and may result in your exclusion from the Service, and your Media App being removed from any network, store or server, and any other platform on which the 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. With respect to the Service, You will use the Subsplash API and any information obtained from the Service or a Subsplash Account solely for the purposes authorized by this agreement. You will not circumvent Subsplash’s intended limitations for any feature of the Service/Media App Interfaces as reflected in the Subsplash Documentation from time to time. You will not encourage or promote the use of the Subsplash Services in any manner or for any purpose that is not permitted under the Subsplash ToS. You will not use or attempt to use the Subsplash Service, Media App or any Service Data in any manner that is unfair, deceptive, or otherwise unlawful or harmful to Subsplash, any Subsplash Clients, or any 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.
USE ONLY BY YOUR ORGANIZATION:
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 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 Media App without refund.
All Content included in your data feeds must be viewable on your web site at such time as it is viewable using the Media App. You may not make the Media App available to another entity for inclusion of their Content and you may not rent, lease, or sell the Service to third parties or otherwise provide other entities with the ability to distribute their Content through the Media App unless it is branded as your Content. You agree not to resell, republish, duplicate, reproduce or exploit any part of the Service without Subsplash's prior written permission.
DATA FEEDS; RESTRICTIONS ON CONTENT 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 Media App. In 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 them through Media Apps on 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 Media App. You represent and warrant that you have all rights needed to authorize Subsplash to use, copy, transmit, publicly perform, digitally perform, publicly display and distribute the Content provided through such data feeds.
You may not use the Service in a prohibited manner or include in the data feed any Content 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 Content served through the 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 inappropriate for our network. 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".
Content determined by Subsplash to be illegal, or to violate any local, state 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 or images, video or other content (e.g. nudity, bestiality, pornography).
Content that is inappropriate based on the subject matter.
Content that is 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.
Content that violates intellectual property rights of any person.
You agree that you will only utilize Content 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;
collect information about other users for any improper purpose;
CONSENT TO RECEIVE EMAILS:
By using the Service, you consent to receive emails from Subsplash, which may include commercial emails. We will not use your information to send you news or product updates, unless you "opt in" to receiving such communications. In addition, 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.
RIGHT TO UPGRADE SERVICE:
Subsplash reserves the right to upgrade and/or change the Service at any time without notice.
PAYMENT FOR SERVICES:
Your total configuration fee shall be as shown in the Statement of Work (if any), which incorporates all of the terms and conditions of the Terms of Service already agreed to by the parties. Upon your acceptance of the Statement of Work, you authorize Subsplash to bill your credit card for a deposit of the configuration amount and Subsplash shall begin configuring a 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 Media App for publication on the platform you selected. Subsplash shall charge your credit card the agreed monthly fee each month in advance. You represent and warrant that all credit card, ACH, and or other payment and related information that you provide to Subsplash for such purposes shall be true and correct. 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. 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 or local sales, use, property or value added taxes based on the services 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 Media App from any and all platforms on which the Media App has been published. After the first year of Service, you may terminate the Service at any time. Prepaid fees are non-refundable.
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 the Subsplash any business Subsplash enjoyed or solicited from such customers and to the extent that you gained valuable confidential information from Subsplash, you shall not enter into competition with Subsplash .
NONINTERFERENCE WITH SUBSPLASH EMPLOYEES:
During the time that your account is active and for two (2) years following, you agree that you will not:
induce, or attempt to induce, any Subsplash employee to quit Subsplash's employ,
recruit or hire away any Subsplash employee, or
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 Media Apps or data by Apple, Inc. or gatekeepers of other platforms, networks, stores or servers. If the app is rejected by them for code defects, Subsplash will correct them and re-submit them as soon as reasonably possible. If the app is rejected for any other reasons (content, feeds, branding, etc.), Subsplash will use the allocated consulting hours to work with you to fix and resubmit the 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.
DISCLAIMER OF WARRANTIES:
EXCEPT AS STATED ABOVE, THE SITE, THE SERVICE MATERIALS AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS ABOVE, SUBSPLASH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT SERVICE MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SITE, OR THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. SUBSPLASH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
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, THE CONTENT OR THE SERVICE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM SUBSPLASH OR 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 OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SITE 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."
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.
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 and submit to the exclusive jurisdiction of such courts.
In the event of any controversy between the parties, the parties hereto shall consult and attempt to reach a solution satisfactory to both parties. If they fail to do so within a period of thirty (30) days, then either party may, by notice to the other, demand mediation under the mediation rules of the American Arbitration Association. If resolution is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be settled by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Seattle, Washington. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously. This Section shall not apply to claims concerning the ownership, validity, infringement, misappropriation, disclosure, misuse or enforceability of any confidential information, patent right, copyright, mask work, trademark or any other trade secret or intellectual property. To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. In no event shall any claim, action or proceeding by you related in any way to the Service be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section (Arbitration) is held to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified automatically to comply with such provision and the remainder of this Section shall not be affected.
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.
ACCREDITATION AND PROMOTION:
The Launch screen of the 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 Software'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 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. Also credit must be mentioned in the app description. In all other places where Media App is marketed or distributed, you shall add the following statement "designed and built by Subsplash. Copyright © 2009-2016 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.
Revision -1.5 Feb 9, 2015